Mr Justice Richard Zachaeus Chesoni had already been forced off the bench of judges twice because of bankruptcy proceedings. Case files are unavailable from the Registry of the Nairobi Law Courts.
The election on 29 December returned Mr Moi and gave his ruling party 100 seats to the opposition's 88. The opposition claimed ballot rigging and local and international observers noted serious irregularities.
The facts relating to the judge's 1984 bankruptcy case and his sacking in 1990 were known before the election to the Commonwealth Election Observers Group, which had been given a secret file on his history. The group chose not to release or act on the information but gave the election qualified approval.
Mr Chesoni was forced to retire from the bench in 1984 after the Kenyan High Court found against him in a case brought by the Kenya Commercial Bank for recovery of a debt. The bank, which was government-owned, was instructed not to pursue Mr Chesoni for the money. In 1990 Mr Chesoni was reappointed as a judge but was again sued for the unpaid debt, now more than 30m shillings ( pounds 555,000). He was again sacked, but a year later was appointed chairman of the Electoral Commission.
Soon afterwards the bank's lawyers received a letter telling them the government had ordered the bank to write off the debt. It is improbable that such a decision could have been made without reference to President Moi.
The revelations will raise questions about the Commonwealth observers' role. Mr Justice Telford Georges, the group chairman and a renowned international judge from Trinidad, has confirmed he was given a dossier containing details of Mr Chesoni's debts. This file has caused deep dissension within the Commonwealth Secretariat.
Mr Justice Georges is reported to have been horrified when shown it on arrival in Kenya on 19 December. He wanted the documents appended to the final report, but was persuaded it was too late to act on them.
Asked why he had not protested earlier, Mr Justice Georges said in a telephone interview that by the time he arrived it was impractical to have Mr Chesoni removed and in the latter stages of the campaign the electoral commission had acted acceptably.
But he added that the President should not have persisted in keeping on Mr Chesoni as commission chairman, given what the file disclosed 'because it was very much a case of him being in the government's pocket'.
Mr Georges said on Friday that the dossier was available for inspection at the Commonwealth Secretariat in London. However, Chief Emeka Anyaoku, Commonwealth Secretary General, said only the report will be published. It is understood documents relating to Mr Chesoni are not included.
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