184. Mr. Juma is dead and cannot defend himself. Mr. Masibo provided a detailed witness statement which denied any wrongdoing. The Government did not put to Mr. Masibo while in the
witness box the so-called “incriminating” evidence. Fairness required, if the Government wished
188 David Anderson First Witness Statement, para. 115. 189 Tr. Day 6, p. 15, ll. 3-6. 190 Hari Kinosthe Ndung’u First Witness Statement, para. 27. See also Respondent’s Counter-Memorial on the Merits and Memorial on Objections to Jurisdiction dated 5 October 2016, para 16. 191 Harie Kinosthe Ndung’u First Witness Statement, para. 27.
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to pursue its allegations of corruption, that Mr. Masibo be given the opportunity to explain his
conduct. This opportunity was not given. The Tribunal does not accept the Government’s
explanation that it did not wish by cross-examination to further complicate Mr. Masibo’s existing legal jeopardy in Kenya.192 Mr. Masibo’s lawyer, not the Government, was present to protect Mr.
Masibo. Nevertheless, the Government seeks to persuade the Tribunal to draw the conclusion that
“this arrangement involved corruption. On that basis alone, the Government says, the claim should
be dismissed, as investment treaty protection does not extend to investments procured by corruption and/or made in bad faith.”193
185. The Tribunal rejects the allegations of corruption against Mr. Masibo as unproven.
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