Embattled Supreme Court Judge Philip Tunoi on Monday sought to clear his name in the wake of allegations that he received a Sh200 million bribe to influence a ruling in an election petition.
In an affidavit filed with a special committee of the Judicial Service Commission, Justice Tunoi said the allegations against him were “fiction” and that they were made by “elements within the Judiciary” who did not wish to disclose their identities.
According to the judge, it is possible the date the affidavit was filed by Mr Geoffrey Kiplagat was deliberately backdated to tarnish his reputation.
And for the first time, the judge said he was, indeed, familiar with Mr Kiplagat and that they hailed from the same home area.
“The deponent hails from my home; attempted an elective position during the last General Election and was unsuccessful. Since then, deponent is a busybody who pretends to be connected to persons in the public service,” he said.
'ASSUMPTIONS' AND SCHEMES
Initially, the judge had denied knowing or meeting Mr Kiplagat, who had claimed in yet another affidavit that he had acted as a conduit in the bribery, whose aim was to procure a ruling favourable to Dr Evans Kidero in 2014 after his election as Nairobi governor was challenged in a petition by Mr Ferdinand Waititu.
The judge further claims that it was merely an assumption that the brown briefcase Mr Kiplagat alleges to have seen contained $2 million.
“The deponent unashamedly assumes that the briefcase contained money notwithstanding that in his narration we had not seen any money,” he says in his affidavit.
Justice Tunoi’s defence was largely targeted at the character of lawyer Mansur Muathe Issa, who he claimed commissioned Mr Kiplagat’s affidavit.
The judge — in his sworn affidavit — linked Mr Issa to the JSC, arguing that the lawyer had previously represented the JSC in other cases, including one in which he was seeking determination that retirement age for judges be 74 years.
“In that petition, I named the Judicial Service Commission and the Judiciary as the 1st and the 2nd respondents, respectively,” said Justice Tunoi.
He also said Mr Issa “was appointed by both respondents to act for them in the suit and he filed a notice of appointment in the High Court on June 9, 2014.”
The judge further argues that the signature appended on Mr Kiplagat’s affidavit is unmistakably similar to Mr Issa’s handwriting and that the lawyer was still actively engaged by the JSC to defend it in a case he has filed against the commission.
He further claims that the affidavit by Mr Kiplagat may have been backdated intentionally to facilitate a scheme to destroy him.
“It is also evident that the affidavit does not bear the name of the person who drew it. It is thus probable that elements within the Judiciary prepared the fiction, but could not disclose their true identity,” he states.
Justice Tunoi declined to address the media before and after appearing before the special committee.
For two hours, however, he was questioned by members of the committee, led by Prof Margaret Kobia, chairman of the Public Service Commission. The public and the media were allowed into the chamber.
Neither did Justice Tunoi meet his accuser, Mr Kiplagat, who had appeared before the same panel at 9am.
Mr Kiplagat had claimed in an affidavit that he had served as a conduit in a bribery chain between the judge and Dr Kidero.
On Sunday, the special committee said it would not be summoning the governor.
However, if President Uhuru Kenyatta names a tribunal to investigate the judge, it is likely that Dr Kidero could be asked to appear before it.
During Sunday’s hearing, the judge was represented by Mr Pheroze Nowrojee and Mr Fred Ngatia.
“The commission accorded him time to respond to every allegation that was raised by the accuser,” said a source.
The committee said it had gathered a lot of information from both the judge and his accuser and that they will invite other people mentioned during Sunday's proceedings.
“We have reviewed key documents that are central to this inquiry and talking to various persons on the same.
“After taking the evidence of Mr Kiplagat and Justice Tunoi, the committee will take evidence of other persons who we believe may have information that may assist us reach an informed decision,” she said.