The High Court has thwarted attempts by the Director of Public Prosecution Noordin Haji and his counterpart for Criminal Investigations (DCI) George Kinoti to push Deputy Chief Justice Philomena Mwilu out of office over alleged graft and misconduct.
A three-judge bench has quashed a petition filed by the duo at the Judicial Service Commission (JSC) in 2019 seeking removal of Justice Mwilu from office in relation to alleged graft, failure to pay taxes, forgery and uttering of a false document.
They had argued that she was unfit to hold public office as it was also alleged that she was involved in the irregular sale and acquisition of property.
But the High Court said the DPP and DCI lacked a legal standing (locus standi) to lodge a petition at the JSC for removal of a judge.
The court said being State officers they are excluded by the Constitution -Article 168(2) -from persons who can petition the JSC and that allowing them to do so would violate the doctrine of separation of powers.
"Courts must adopt a purposive interpretation of the Constitution. If the state agencies were to lodge a petition at JSC the Constitution would have said so. Only natural persons can lodge petitions, not state organs," the court ruled.
The three-judge bench comprising Justices Juma Chitembwe, Roselyn Aburili and Weldon Korir stated that the JSC had no authority to entertain the petition.
The court also suspended the JSC from considering three other petitions lodged against the DCJ by individual Kenyans named as Peter Kirika, Alexander Mugane and Mogire Mogaka seeking her removal.
In the conservatory order, the court directed the JSC to await the outcome of an appeal that is pending at the Court of Appeal since the substance of the petitions and the pending case are similar.
The basis of the petitions is financial transactions concerning the DCJ and Imperial Bank, which is subject of an appeal filed by the DPP against a High Court decision that quashed her criminal trial.
The bench further declared as unconstitutional the decision of the JSC to ask the DCJ to respond to the claims leveled against her by the DPP and DCI as well as by the three other individuals.
According to the court, JSC had abused the process and administrative powers by commencing to deal with the four disciplinary cases against the DCJ.
However, the court dismissed her claims that two JSC commissioners, Attorney General Kihara Kariuki and Law Society of Kenya representative Macharia Njeru, were biased against her in the disciplinary proceedings.
But the court said there was 'no iota of evidence' on the allegations and that the two commissioners were performing their duties. The court added that the joinder of the two commissioners to the case was erroneous.
