Kenya’s highest court suffered a further credibility crisis with the recommendation that a judge accused of taking a $2 million bribe to influence the outcome of an election petition should face a tribunal to determine his suitability for office.

Following the decision by the Special Committee of the Judicial Service Commission, Supreme Court Judge, Justice Phillip Tunoi has the option of resigning or facing the tribunal. President Uhuru Kenyatta has 14 days — from the day he receives  the committee’s recommendation — to constitute the tribunal.

The judge had been accused of receiving $2 million to influence the outcome of a petition against the election of Nairobi Governor Evans Kidero. The petition was by Ferdinand Waititu. 

In its verdict, the committee said it was satisfied that there had been inappropriate interaction and communication between the judge and agents of a litigant in a matter pending before the Supreme Court.

“This in the opinion of the Commission amounts to gross misconduct and misbehaviour, sufficient to warrant the establishment of a tribunal to further investigate the matter,” read its statement.

The committee, however, did not determine whether Justice Tunoi received the bribe. This will be determined by the tribunal.

Reacting to the verdict, the chairman of the Law Society of Kenya, Eric Mutua, said the committee’s finding that the judge had had inappropriate interaction with an agent of a litigant by extension taints the entire five-bench judge that ruled in favour of Dr Kidero.

READ: LSK wants a new Supreme Court

Journalist Geoffrey Kiplagat had sworn an affidavit that he acted as an intermediary between Justice Tunoi and agents of Dr Kidero.

Justice Tunoi is the second member of the Supreme Court to face a tribunal since it came into effect under the 2010 Constitution.

The first was former deputy chief justice Nancy Baraza. She resigned in October 2012, nine months after she was accused of threatening a security guard with a gun.

She chose to resign and drop the appeal she had lodged with the Supreme Court after the tribunal led by Tanzania’s former chief justice Augustino Ramadhani recommended that she be sacked.

READ: Trials and triumphs of Nancy Baraza

Nairobi lawyer Gitobu Imanyara said the outcome of the investigation of Justice Tunoi was the beginning of the end of the Supreme Court as currently constituted.

He said that there would be pressure on Dr Mutunga to act on the pending LSK application to act on three other Supreme Court judges — Njoki Ndungu, Jackton Ojwang and Mohamed Ibrahim — whom the lawyers accuse of being on a go-slow in solidarity with their colleagues Justice Tunoi and Deputy Chief Justice Kalpana Rawal. The two had filed a case challenging the requirement for them to retire at 70 instead of 74.

“Dr Mutunga will have no justification to act on one complaint and leave the other. Otherwise, he will be seen as applying the law selectively,” said Mr Imanyara.