This Report deals only with the investigation by the Tribunal into the conduct of Judge of Appeal, the Hon. Mr. Justice P. N. Waki. Our appointment as members of the Tribunal to investigate the conduct of Judge of Appeal, the Hon. Mr. Justice P. N. Waki, which is contained in Gazette Notice No. 8828 dated the 1ltit December, 2003, and the appointment of Mbuthi Gathenji and Margaret Nduku Nzioka as Counsel to Assist the Tribunal and Secretary to the Tribunal, respectively, and contained in Gazette Notice No. 377 dated the 20t1, January, 2OO4, are reproduced as Appendix "A" of this Report. In exercise of the power conferred upon the Tribunal to regulate its own procedure, the Tribunal made its Rules of Procedure, which are reproduced in Appendix "B' of this Report. Before the Tribunal began its hearings, Senior Counsel, Philip Nzamba Kitonga who is a member of the Tribunal, was also appointed by the President to be the Vice-Chairman of the Goldenberg Judicial Commission of-Inquiry. He was not, however, replaced as a member of the Tribunal. He was therefore; hardly able to sit in the hearings of the Tribunal and so, could not take part in the preparation of this Report. Therefore, taking into account the inability for one reason or another, of a member of the Tribunal to take part in a hearing of the Tribunal, the Rules of Procedure of the Tribunal, provided that a minimum quorum for a hearing of the Tribunal shall be the Chairman and any two members of the Tribunal. Further, in order to enable the affected Judge of Appeal to be made reasonably aware of the allegations made against him, the Rules of Procedure of the Tribunal provided:- (a) that the subject of the investigation or any person adversely affected or implicated in the investigations shall have the right to be present during the proceedings that relate to him or her and may choose to be represented by counsel and shall have the right to crossexamine witnesses who give evidence against him or her either by himself or herself or by counsel; and (b) that the Counsel assisting the Tribunal shall draw up a list of the allegations against each subject of the investigation, together with a summary of the evidence in support of the allegations and shall serve the document containing the allegations and the summary of the evidence on the subject of the investigaiion, at least fourteen (14) days before the date of the hearing. In its investigation into the conduct of Judge of Appeal, the Hon. Mr. Justice P. N. Waki, the Tribunal sat and heard evidence virtually continuously from the 9th February, 2OO4, to the 2nd August, 2004. The Tribunal heard a total of forty witnesses whose names are listed in Appendix "C" of this Report and received in evidence a total of ninety three exhibits which are listed in Appendix ‘D' of this Report. The relevant sections of the Constitution regarding the removal of a Judge of the Court of Appeal from office, are as follows:- "62 (4) A judge of the High Court shall be removed from office by the President if the question of his removal has been referred to a tribunal appointed under subsection (5) and the tribunal has recommended to the President that the judge ought to be removed from office for inability as aforesaid or for misbehaviour. (5) If the Chief Justice represents to the President that the question of removing a puisne judge under this section ought to be investigated, then - (a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons - (i) who hold or have held the office of judge of the High Court or judge of appeal; or (ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or (iii) upon whom the President has conferred the rank of Senior Counsel under section 17 of the Advocates Act; and (b)the tribunal shall inquire into the matter and report on the facts thereof to the ' President and recommend whether that judge ought to be removed under this section. (6) Where the question of removing a judge from office has been referred to a tribunal under this section, the President, acting in accordance with the advice of the Chief Justice, may suspend the judge from exercising the functions of his office and any such suspension may at any time be revoked by the President, acting in accordance with the advice of Chief Justice, and shall in any case cease to have effect if the tribunal recommend to the President that the judge ought not to be removed from office. 64 (3) The foregoing provisions of this Part shall apply in respect of the judges of appeal as they apply to puisne judges.". In accordance with the Rules of Procedure of the Tribunal, Counsel Assisting the Tribunal, whom we shall hereinafter, refer to as Assisting Counsel, drew a list of the allegations against Justice Waki together with a summary of evidence in support of the allegations which were properly served on Justice Waki. The allegations and the summary of evidence as drawn up by Assisting Counsel and served on Justice Waki, which in some cases overlap and which constitute the subject matter of our investigation are:-

We, the Hon. Mr. Justice (Rtd) Akilano Molade Akiwumi, the Hon. Mr. Justice William Shirley Deverell, the Hon. Mr. Justice Benjamin Patrick Kubo, Joe Wandago Okwach, Esq., SC and Philip Nzamba Kitonga, E.q., SC were, in exercise of the powers conferred on Your Excellency by sections 62(51 and (6) and. 64(3) of the Constitution, appointed on the 10th December, 2OO3 by Gazette Notice No. 8828, published in the Special Issue of the Kenya Gazette Vol. CV-No.l24 of the 1lth December; 2003, to be members of a Tribunal to investigate the conduct of Judges of Appeal Moijo M. ole Keiwua and P. N. Waki. The mandate of the Tribunal, whose Chairman is the Hon. Mr. Justice (Rtd) Akilano Molade Akiwumi, and as set out in the Gazette Notice, was:- (a) to investigate the conduct of Judges of Appeal, Moijo M. ole Keiwua and P. N. Waki, including, but not limited to, the allegations (b) that the said Judges of Appeal have been involved in corruption, unethical practices and absence of integrity in the performance of the functions of their office; and (c) to make a report and its recommendations thereon to Your Excellency expeditiously. The Gazette Notice further provided that the Tribunal shall have all the powers necessary for the proper execution of its mandate, including the power to:- (a) determine the times and venue of its meetings; and (b) to regulate its own procedure. Mr. Mbuthi Gathenji and Mrs. Margaret Nduku Nzioka were also, in exercise of the powers conferred on Your Excellency by sections 62(5) and (6) and 64(3) of the Constitution, appointed on the 19th Januar5r, 2OO4 by Gazette Notice No. 377, published in the Special Issue of the Kenya Gazette Vol. CVI-No.1O of 2Ob January, 2OO4, as Counsel Assisting the Tribunal and Secretary to the Tribunal respectively. Prior to embarking on the investigation, the Hon. Mr. Justice (Rtd) Akilano Molade Akiwumi, the Hon. Mr. Justice William Shirley Deverell, the Hon. Mr. Justice Benjamin Patrick Kubo, Mr. Joe Okwach, SC and Mr. Nzamba Kitonga, SC each made and subscribed to an oath before the Chief Justice of Kenya. The Tribunal is the first of its kind to be established in Kenya, to investigate the conduct of Judges of Appeal. The immense national importance of the Tribunal, and the wide ranging extent and implications of its investigation, demanded the utmost patience, impartiality and meticulous inquiry on our part. We have in accordance with sections 62(5Xb) and 64(3) of the Constitution, carried out and completed our investigation into the allegations of misconduct against the Hon. Mr. Justice P. N. Waki. The decision of the Tribunal, derived from our investigation of the facts thereof, is that Justice Waki ought not to be removed from office. The Tribunal now so recommends to Your Excellency. The consequence of this recommendation is that, in accordance with the provisions of sections 62(61 and 64(3) of the Constitution, the current suspension of the Hon. Mr. Justice Waki from exercising the functions of his office, immediately ceases to have effect. We now have the honour, Your Excellency, to submit our Report to you and to thank you for the trust that you bestowed on us.