High Court Judge Said Juma Chitembwe has accused the Directorate of Criminal Investigations (DCI) of twisting facts to justify his unlawful arrest alongside another judge, Aggrey Muchelule, in July.
In a fresh affidavit, Justice Chitembwe says the DCI is trying to trick the courts by labelling the $7,000 (Sh770,000) he surrendered to detectives as unexplainable wealth found during a search at his chambers.
The judge holds that the DCI has intentionally left out a search certificate on the $7,000 from the court records, and that the document would have confirmed that he surrendered the funds willingly.
Justice Chitembwe adds that the $7,000 was intended for his son’s school fees, and that he intended to visit a bank to find out how to deposit it in an Australian university’s bank account.
He has filed evidence to show that he and his wife operate a dollar account, hence it was not strange for him to carry US currency from time to time.
“The $7,000 in my possession was and still is my lawful money intended for my son’s school fees in Australia. I voluntarily handed over the same to the officers when I saw them do a body search on Justice Muchelule so as to avoid any misrepresentation by the said officers as is now represented in (Chief Inspector Felix) Karisa’s affidavit,” Justice Chitembwe says in his affidavit.
“I was waiting to find time to go to the bank for help and advice on how to transfer the money to the university directly as requested by my son when I was unceremoniously and embarrassingly roughed up and arrested within the court precincts for no crime at all,” the judge adds.
The Kenya Magistrates and Judges Association (KMJA) – an umbrella body for judicial officers – has sued the DCI and Director of Public Prosecutions Noordin Haji in a bid to stop any plans to charge the two.
DCI officers arrested justices Chitembwe and Muchelule on July 22, 2021, claiming that they had information that the two judges had stashed money from an illicit justice-for-sale scheme in their offices.
Despite being one of the respondents, DPP Haji at the time denied approving the arrest and questioning of the two judges and their staff.
KMJA says in its suit that the DCI violated the law by failing to alert the judges of any investigations and of raiding their offices without search warrants.
In his filings in court, Justice Chitembwe says he visited Justice Muchelule’s chambers to find out if the two could go have tea at the Milimani Law Courts’ café.
As Justice Chitembwe was leaving, he met three DCI officers at the door and they asked him to go back to Justice Muchelule’s office.
The detectives said they wanted to conduct a search in both judges’ chambers. The judicial officers asked to see a warrant but the detectives said they did not require a warrant for their operation.
Justice Chitembwe holds that the detectives did a body search on the unidentified woman in the presence of Justice Muchelule’s secretary and recovered $50,000 (Sh5.5 million).
“The said officers also brought into chambers of Justice Muchelule an unidentified lady seemingly under arrest who, without introduction to us, they proceeded to take to the toilet of Justice Muchelule’s chambers in the presence of Justice Muchelule’s secretary and searched her and allegedly recovered $50,000 from her,” Justice Chitembwe says.
The judge says that to date, he has never been informed of what the DCI is investigating him for, contrary to the law.
He faults the DCI for doing the search, arrest and questioning without informing him, the Judicial Service Commission (JSC) or Chief Justice Martha Koome.
Justice James Makau on July 23 issued orders barring the DCI and the DPP from charging either of the judges until he rules on the KMJA petition.
