Chief Justice Will Mutunga is yet to receive ICC chief prosecutor Fatou Bensouda's request for certain files on the four Kenyans on trial at The Hague over the 2007/08 post-election violence.
In a morning meeting with Mutunga, deputy Solicitor General Muthoni Kimani and Chief registrar of the Judiciary Gladys Shollei, Bensouda was told requests processed through the Attorney General Githu Muigai's office have not reached judiciary.
Judicial Service Commission members Florence Mwangangi and Samuel Kobia attended the meeting after Mutunga declined to meet Bensouda alone saying he has come under attack in the recent past over one-on-one meetings with foreigners.
However, sources at Githu's office termed the allegations as "utter rubbish" because they have letters from the Judiciary acknowledging receipt of the requests for assistance. The AG's office claimed the Judiciary has submitted some of the files requested.
"The prosecutor claimed she had long forwarded the requests through the AG. The registrar, however, denied she had ever received such requests except one. In fact the registrar was offering to facilitate transfer of such information in 24 hours if official request is made," said a source who attended the meeting.
Bensouda wanted the exhibits and files on the Kiambaa arson attack and a file of a witness who is already in jail. She also wanted files relating to the stalled statement-taking of senior security officers in violence hot-spots.
The ICC chief prosecutor, who was accompanied at the meeting by head of jurisdiction, complementarity and cooperation Phakiso Mochochoko and his deputy Shamizo Mbizvo, is said to have been disappointed by the turn of events.
Githu, who is out the country could not be reached for comment, but sources at his office claimed "someone is out to mislead the prosecutor and the nation".
"We will be shocked to see a story that the AG does not forward requests when in fact we have confirmations of requests from those government agencies where the request is made. This includes the judiciary," said a senior officer who sought anonymity.
The officer said the requests are meant to be confidential and urged the media to tread carefully. Last month, Mochochoko wrote a harsh letter to the AG saying "the slow pace of processing these requests is a source of frustration for the OTP (Office of the Prosecutor)."
Githu, however, said his only role is to "process" ICC requests by forwarding them to the relevant authorities. Once the agencies respond, he then "transmits" the same to the ICC.
"We have never withheld any information or evidence meant to be passed onto ICC and will endeavour to ensure that the Government of Kenya co-operates with the ICC, according to the Rome Statute," he said in a statement to the Star.