the nairobi law MONTHLY
Date: 11.03.2016
Page 24
Article size: 374 cm2
ColumnCM: 83.11
AVE: 0.0
Con games of old show Tunoi could've acted alone
Judge's delaying tactics with governor s team could have been designed to help him gauge the
direction the case was talking so he could collect the money on the pretext he had 'lobbied'
JARED JUMA
Salient features of the explo­
sive Affidavit sworn by Geoffrey
Kiplagat, the accuserofSupreme
Court Judge Philip Tunoi in the
Sh200 million bribery saga, brings back
memories of the con game in the corridors
of justice popular in the old Judiciary. The
same could still be going on despite the
many reforms Chiefjustice Willy Mutunga
has tried to infuse in the systems manage­
ment of the institution.
Consideringthe rampant claims of brib­
ery and justice brokerage claims that had
become common with the Kenyan courts
in the pre­new Constitution era, one of the
following narratives came out; that par­
ties could come and argue so much about
the entire suit and fix a judgment date, but
with no side sure on how the judge would
tilt his ruling or judgment, they would
both hope for the best as they prepared
for the worst. The era of judicial activism
they would believe they had successfully
bought the judgment when, in fact, they
had then set in.
would have been mere victims of their own
A court clerk attached to the judge and
familiar with the pending outcome would
then approach one of the parties in whose
circumstances. In such a matter, the clerk
eats minus making any more disclosures
lest the clueless, even honest judge gets
favour the judgment has been prepared
and posture as an accessory of the Judge ­
it would be the party whose argument the
judge had upheld ­ and the clerk would
tell them that "the judge is sayingyou are
so quiet since you made your last submis­
wind of the fact that a cunning clerk used
It is just a way of looking at the case of
Justice Philip Tunoi of the Supreme Court
and Geoffrey Kiplagat. One of the facts
that stand out in the affidavit calls for a
his name to enrich himself.
scrutiny of how the Supreme Court works,
and how the judges arrive at their judg­
ments. While explaining how the Raila
Odinga petition was ruled, Nairobi lawyer
A game of chance
Isaiah Munje quotes Chiefjustice Dr Willy
Mutunga: "The Judges will first hear the
So, in all these underhand develop­
ments, there would be a party who would
be quietly making himself (or herself)
rich. The judge would not know that mon­
ey had changed hands behind his back
since as a public officer, he had dispensed
matter in an open court then each party
will retire with the bundle of evidence of
is read, would take cue and start looking
for "something" to give the clerk so as to
help "talk" to the Judge. When the matter
with his duties. But that is not always the
argument to their chambers and inde­
pendently arrive at a position. After each
judge forms an opinion, then they would
all conference around the matter and they
would each bring their position in the case
case. Some judges and magistrates play
conference session.
along and benefit from the subversion of
was eventually read in favour of the party,
justice.
"But if it were to happen that the matter
had judges arriving with divergent opin­
sion" in the matter.
The approached party, unaware that
the judge has ruled in their favour and is
only a matter of time before the judgment
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