NAIROBI, Kenya, Jun 13 – As the curtain falls on the tribunal investigating bribery allegations against Supreme Court judge Philip Tunoi, his lawyer Fred Ngatia is asking the tribunal to dismiss the claims and end the probe.
Ngatia, on Monday told the Sharad Rao led tribunal that the evidence so far adduced has not linked the judge to the accusations, and it is imperative that the commission halts its probe.
“Mr Chairman, the position the judge takes is as follows; after having listened to all the witnesses, that there are three issues that you will be able to determine; the first is what is the scope of this inquiry,” the lawyer submitted.
“The scope appears to be as set out in the petition signed by the Chief Justice and which was sent to the appointing authority.”
The Chief Justice’s petition as submitted to the President “refers to what JSC had found as inappropriate interaction between a judge and agents of a litigant. The litigant he is referring to is Governor Kidero.”
The said ‘interaction’, was for the purpose of influencing a, “decision that was in the petition that was before seven judges in the Supreme Court.”
In the recommendation of Judicial Service Commission (JSC), Ngatia pointed out that JSC only picked out on the bribery allegations and left out “inappropriate interaction and communication as an allegation.”
He said if the tribunal picks on the bribery allegation, “it is on a specific date, time and venue. It is so specific that your scope is limited by the specific nature of the allegation.”
This was after phone data placed Tunoi and Nairobi Governor Evans Kidero who allegedly bribed the judge in two different locations on August 27, 2014, the day the Sh200 million allegedly changed hands.
He also noted that not even the accuser saw the alleged money.
“What JSC did, which we submit, was very unfair, very prejudicial is to demonstrate an activity. They went to Central Bank assumed it is a hundred dollar bill (that changed hands),” he complained. “Two million dollars is the kind of sum that should have been noted in the financial system…again no evidence of that magnitude.”
“This is what the judge has always said, this is a script, and a very poor script only intended to get him out of the Judiciary.”
Ngatia specifically questioned the manner in which the probe against the judge was initiated saying it didn’t meet the threshold of the Constitution.
According to Article 168 of the Constitution, “The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion or on a petition by any person to the Judicial Service Commission.”
“We know beyond any argument that JSC did not do so,” the lawyer asserted. “Fidelity must be in the Constitution not high offices holders. Judges ought to be investigated by JSC.”
He noted that, “no magistrate has powers to investigate a superior court judge even if that judge is referred to as an Ombudsman.”
“The career of Judge Tunoi has come to an end after many years of service to this nation because allegations were peddled against him, even when they knew it was untrue.”
He urged the tribunal to expeditiously reach a decision and make it on Tuesday.
A detective who testified in the ongoing probe against the judge earlier on Monday revealed that his main accuser tried to reach the judge on phone.