GAZETTE NOTICE NO. 2057

the following Rules for the conduct and management of the proceedings of the investigation / inquiry pursuant to its mandate under the Constitution of Kenya and the aforementioned Gazette Notices under Section 31(5) of the Judicial Service Act: 1. The principles of the Constitution and that of substantive justice shall apply to these Rules. 2. The Tribunal shall sit on such days, at such times and venues as it may determine. 3. The quorum necessary for the conduct of the hearing of the Tribunal shall be the Chair and four (4) other members of the Tribunal. 4. The business of the Tribunal shall be carried on by the Chair, any three (3) members of the Tribunal and the Secretary. 5. In the absence of the Chairperson the business of the Tribunal shall be carried on by the Vice-Chairperson, any three (3) members of the Tribunal and the Secretary. 6. If by reason of death, illness, resignation from the Tribunal or for any other reason, a member is unable to continue sitting in the proceedings the Tribunal may continue to conclude the hearing despite the absence of the member. 7. Where a member, for reasons beyond the control of the Tribunal, is unable to sign the decision of the Tribunal, the reason shall be recorded, and the decision signed by the other members. 8. The decisions and recommendations of the Tribunal shall be carried by a simple majority. 9. The hearing shall be held in private save that the subject of the investigation / inquiry may choose to have the hearing in public. 10. The Tribunal may exclude any person or class of persons from all or any part of the investigation / inquiry if satisfied that it is desirable so to do for: (a) The preservation of order; or (b) The due conduct of the investigation / inquiry, or (c) The protection of any witness in the investigation / inquiry or any person referred to in the course of the investigation / inquiry or the property or reputation of such witness or person and (d) May if satisfied that it is desirable for any of the purposes aforesaid so to do, order that no person shall publish the name, address, or photograph of such witness or person or any evidence or information whereby he would or may be identified. 11. The Subject of the investigation / inquiry shall have the right to be present during all the proceedings that relate to her and shall be entitled to legal representation by counsel. 12. The Counsel assisting the Tribunal will present evidence relating to the conduct of the subject and any matter relevant to the investigation / inquiry. 13. (i) The Tribunal shall serve the subject of the investigation / inquiry a hearing notice at least fourteen (14) days before the date of the hearing. (ii) Service on the subject shall be effected through personal service or through the Chief Registrar of the Judiciary. (iii) A hearing notice under this Rule shall be in Form 1 in the Schedule. 14. The Counsel assisting the Tribunal shall draw up a list of allegations against the subject of the investigation / inquiry together with a summary of the evidence in support of the allegations and shall serve the documents containing the allegations and the summary of the evidence on the subject of investigation at least fourteen (14) days before the date of hearing. 15. The Tribunal may, at its sole discretion summon any person or persons to testify before it on oath or to produce such document the Tribunal may require, and the person so summoned shall be obliged to attend and to testify or produce the required documents and the THE KENYA GAZETTE 20th April, 2012 1332 1332 provisions applying to witnesses summoned by ordinary Courts of Law shall apply to such person. 16. A request made under Paragraph 15 shall be in writing and shall be addressed to the Secretary of the Tribunal. 17. (i) Summons issued by the Tribunal shall be endorsed by and bear the signature of the Secretary. (ii) A witness summons under this Rule shall be in Form 2 of the Schedule. 18. The subject of the investigation / inquiry shall have the right to cross-examine any or all the witnesses in the investigation / inquiry. 19. The subject of the investigation / inquiry shall be entitled to call evidence to rebut allegations made against her. 20. The subject, duly served may elect not to attend in person or by Counsel or at all in which event the Tribunal shall be entitled to consider the evidence available and make a report and appropriate recommendations. 21. The Tribunal and Counsel assisting the Tribunal shall be entitled to cross-examine the subject and any of the witnesses called by the subject of investigation / inquiry. 22. The Tribunal shall have the power to recall any witness or witnesses. 23. Evidence before the Tribunal may be presented in the form of Memorandum, affidavit or other documentation and the Tribunal shall be entitled to receive such documents and to use the contents thereof in forming its opinion. 24. The Tribunal shall not be bound by the strict rules of evidence but shall be guided by the rules of natural justice and relevancy. 25. The subject of the investigation shall be furnished with copies of any documentary evidence and may seek leave to address the Tribunal thereon. 26. At the close of the hearing of all evidence before the Tribunal, Counsel assisting the Tribunal and the subject of investigation / inquiry or her Counsel shall be entitled to make submissions. 27. The Chairperson may issue Practice Directions for the just, efficient and economical determination of proceedings, and in relation to these Rules. 28. Nothing in these Rules shall limit or otherwise affect the inherent power of the Tribunal conferred to it by Article 168 of the Constitution either on its own motion or on the application of a party to make such orders as may be necessary for the ends of justice or to prevent abuse of its process. 29. The Tribunal may, from time to time by notice in the Gazette amend these Rules. SCHEDULE FORM 1 (Rule 13 iii) HEARING NOTICE TO: ---------------------------------- (Subject) -------------------------------- -------------------------------- WHEREAS His Excellency the President and Commander-in- Chief of the Kenya Defence Forces has appointed a Tribunal to investigate / inquire the conduct of the Deputy Chief Justice of the Republic of Kenya and Vice-President of the Supreme Court Lady Justice Nancy Makokha Baraza as per the mandate of the Tribunal set out in