A defiant Supreme Court judge Philip Kiptoo Tunoi — expected to face a tribunal for alleged bribery and gross misconduct — yesterday said he is blameless and will clear his name.
“Justice Tunoi has learnt of the recommendation made by the Judicial Service Commission and reiterates his innocence against the false accusations made against him,” said a statement by his lawyer Fred Ngatia.
Judge Tunoi is accused of receiving a $2 million (Sh200 million) bribe in July 2014 from Nairobi Governor Evans Kidero to rule favourably on a petition challenging his election. His victory had been overturned by the Court of Appeal. A seven-judge Supreme Court bench ruled in Kidero's favour.
The accusation and suggestion money was spread around has divided the court, tarnished its image, prompted calls for its dissolution and riveted the nation.
The governor denies the allegations by former journalist Geoffrey Kiplagat, claiming to have been the middleman.
The judge's statement immediately followed a recommendation by the JSC that President Uhuru Kenyatta appoint a tribunal to investigate allegations.
Chief Justice Willy Mutunga, who chairs the JSC, said it had adopted its committee's report on the allegations. It did not render a judgement, but recommended a tribunal.
“The Commission is satisfied from the totality of the material and information presented there was inappropriate interaction and communication between Tunoi and agents of a litigant in a matter pending before the Supreme Court," Mutunga said.
He said this contact "amounts to gross misconduct and misbehaviour, sufficient to warrant establishment of a tribunal to further investigate".
Ferdinand Waititu, who lost to Kidero and lost his challenge to the election, yesterday announced he will seek a review of the Supreme Court judgement affirming Kidero's victory.
Sources said the committee discounted the judges entire defense and found no malice in the JSC action, as Tunoi had claimed.
In making its decision, the JSC considered whether the judge and his accuser knew each other and whether all the parties in the alleged bribery scheme knew each other.
It also considered (and tested at the Central bank) whether US$2 million can fit into a briefcase, whether parties involved communicated, whether the description of the scene where money allegedly changed hands was accurate, whether parties communicated about the election petition and whether money indeed changed hands.
According to sources, the JSC investigating committee headed by Margaret Kobia established Tunoi knew his accuser and all other parties in the alleged scheme knew each other.
Witnesses appearing before the committee did not disown text messages allegedly exchanged about the deal, they said.
It was established communication among the web of those involved stopped immediately after the ruling in Kidero's favour
The committee visited a petrol station on Waiyaki Way where members reconstructed the alleged handover of a briefcase to Tunoi with the help of Kiplagat.
Justice Tunoi had accused the JSC of wanting him out of office and trying to use the allegations to send him home.
It also noted Kiplagat's affidavit was not backdated as suggested by the judge because lawyer Issa Mansour who commissioned it gave evidence confirming when he drew it up. Also, some parties involved told the committee they came to know of the affidavit in 2015.