Controversy has always stalked Justice Tunoi

Even before allegations surfaced that Justice Philip Tunoi took a bribe of $2 million (Sh200 million) to decide an election petition in favour of Nairobi Governor Evans Kidero, the judge was already a controversial figure.

In 2014, Justice Tunoi, together with High Court Judge David Onyancha, commenced legal proceedings against the Judicial Service Commission (JSC), contesting a decision to standardise the retirement age for all judges at 70 years, as provided by the 2010 Constitution.

The two have insisted that their proper retirement age remained 74 years as provided under the repealed Constitution, which was in force at the time of their appointment.

Justice Tunoi reportedly rejected a windfall payment for loss of office covering the disputed four years, thus setting the stage for an unseemly situation where the judge is suing in the same courts where he presides.

The retirement case has dragged on in court, partly because of delaying tactics.

As a result, Justice Tunoi, 72, remains in office and continues presiding on the strength of a series of orders that he has been able to obtain in the suit.

In a paper that he delivered in August 2015, during the annual colloquium of judges in Mombasa, lawyer Ahmednasir Abdullahi asserted that “the stature and standing of the [Supreme] Court has been crushed and completely obliterated”, as a result of the retirement saga, and is now “the laughing stock in both the region and amongst legal scholars, the general public and members of the legal profession”.

Two months later, in what was seen as a self-serving feat, which drew strong rebuke from Chief Justice Willy Mutunga, Justice Tunoi waded into the retirement age controversy when he used the opportunity of sitting in judgment in an unrelated case to decide on the issues pending for decision in his own case against the JSC.

RETIREMENT AGE

A Nairobi lawyer, Titus Koceyo, acting for Nick Salat in a petition arising from the Bomet Senate election, had written to the Chief Justice seeking assurances that questions surrounding the capacities of Justices Rawal and Tunoi, because of the retirement age controversy, would not affect the interests of his client.

In the judgment, the majority (Rawal, Tunoi, Njoki Ndung’u and Jackton Ojwang) used Koceyo’s letter as an entry point into the retirement age controversy, making a finding that the JSC directive on retirement was a nullity, and declaring that the body had no supervisory power over judges.

The judges did not show how a letter not addressed to them, and which was never formally referred to in the court proceedings, formed the basis of findings on issues that were also not the subject of the litigation before them.

Chief Justice Mutunga delivered a strong dissenting opinion, accusing the three judges of dealing “with extraneous issues that should not be included in the judgment,” and pointing out that the issues surrounding the retirement age were “neither found in the submissions of the parties nor did they form the issues framed by this court for determination,” and that “no party before the court sought any reliefs in this regard.”

The Chief Justice noted that two of the judges (Tunoi and Rawal) had filed separate suits in the High Court challenging the very actions of the JSC that they were now sitting in judgment over.

The Chief Justice accused the three of disregarding the existing legal precedents of their very court, and declared that his fellow judges had “violated and subverted the national values and principles articulated in Article 10” and that their actions “smack of “judicial utado?” a worrying form of judicial impunity.”

The altercation in the Supreme Court recalled a previous disagreement in 2001, among judges of the Court of Appeal, then the country’s highest court, in which Justice Tunoi had also played a central role.

On the previous occasion, Justice Tunoi sat as part of a three-judge bench, with Justices Richard Kwach and A.B. Shah. At the end of the case, Express Kenya Limited vs Manju Patel, the three agreed to allow the appeal and Justice Shah was to draft the judgment.

DISALLOW APPEAL

Under circumstances that have never been clarified, Justice Shah changed his mind and now wanted to disallow the appeal and, without involving Justice Kwach, convinced Justice Tunoi to also change his mind. As a result, the two were now the majority, and Justice Kwach was a minority.

Rather than write an ordinary dissenting judgment, Justice Kwach used his dissent to attack the other two judges whose integrity he questioned.

He asserted that whereas, previously, the Court of Appeal had been “above suspicion”, this had now changed and there was a need “to redeem the independence and reputation of this court.”

On the same day, Justice Tunoi wrote and personally delivered a letter to the Nation, as a rejoinder to Justice Kwach’s withering attack.
Public fight.

In the letter, Justice Tunoi accused Justice Kwach of playing to the gallery and challenged him to resign his job if he thought the Judiciary was as bad as he had made it out to be.

This public fight involving judges in the highest court caused a firestorm in the legal profession and left the public bewildered. Amid calls by the Law Society of Kenya for a commission of inquiry to shed light on what lay behind this extraordinary fight, Chief Justice Bernard Chunga moved in, leading the judges in a press conference during which they made up and also apologised for any embarrassment their conduct may have caused the public. 

In between these two judicial fights in which he has taken part, Justice Tunoi has also played a key role in a family dispute involving a multi-billion-shillings company involved in wood processing, the Rai Plywoods in Eldoret.

During the radical surgery in 2003, Jasbir Rai, one of the four sons of Tarlochan Singh Rai, the patriarch who founded the Rai business empire, made a complaint that Justice AB Shah had maintained a collusive relationship with the lawyer acting for their adversaries in a court case in which a section of the family sought the dissolution of the company.

Justice Shah resigned from the Judiciary, rather than contest the well-documented allegations against him which showed that he had assisted the lawyer in drafting the court papers in the case over which he then presided.

When the fact that Justice Shah had been compromised emerged, which was long after the case was dismissed, the complainants sought to reopen it in the Court of Appeal.

While acknowledging that a manifest injustice had occurred, the Court of Appeal, however, relied on the principle of finality making a finding that litigation must come to an end, and hoping that in future something might be done to alleviate the obvious injustice that the losing members of the Rai family had been subjected to.

REVIDED OLD LITIGATION

Section 14 of the Supreme Court Act provided a special jurisdiction under which parties who had been wronged by judicial misconduct could seek the re-opening of their cases in that court within a period of two years.

Other than the Rai complainants, who sought to re-open their lost case in the Supreme Court, media magnate SK Macharia also revived old litigation against a commercial bank which he had lost during the Kanu era. 

Macharia had made a complaint against Justice Tunoi before the vetting board and in response Justice Tunoi pleaded with the board that if given back his job, he would strive to do justice to people like Macharia and Rai who had been wronged by the old judiciary.

Justice Tunoi had recused himself twice when the Rai case came before him in the Court of Appeal. However, in the Supreme Court and with the vetting process now safely behind him, Justice Tunoi insisted on sitting to hear the Rai case.

Lawyer Pheroze Nowrojee applied for his disqualification pointing out that the judge had twice disqualified himself.

However, Justice Tunoi answered that since he could not remember why he had previously disqualified himself, he felt free to sit.

His mysterious relationship with the Rai case was represented in a sentence in the Supreme Court decision on his disqualification, where the court observed that “the legal or factual grounds for the said recusal are not discernible from the Court records. Nor have our collegiate consultations yielded any results to guide the Court in filling this lacuna.”

While he had represented to the vetting board that if given a chance he would do justice to people like Macharia and Iqbal Rai, Justice Tunoi did an about face, holding, together with the majority of the judges in the Supreme Court, that the jurisdiction under section 14 was illegal, and dismissing the separate appeals by Macharia and Iqbal Rai.

It might have provided cold comfort if he had tried to explain the change of mind in his judgment, but he did not.

On numerous previous occasions, Justice Tunoi has engaged in conduct that appears confounding.

The fact that he has survived two vetting processes and earned a promotion to the Supreme Court could be viewed by some as a reflection of the weaknesses inherent in the process of appointment of judges and the regime for disciplining them.