Director of Public Prosecutions Noordin Haji’s bid to nail Deputy Chief Justice Philomena Mwilu suffered yet another setback Tuesday when the latter obtained orders suspending the hearing of a petition pending before the Judicial Service Commission (JSC).
In the filing, Mr Haji is accusing the DCJ of failing to enjoin them as parties in the case before the High Court, knowing “too well that the orders sought in her application were to affect the applicant directly”.
The DPP said the matter raised in her petition cannot be effectively settled unless he is enjoined as a party. This prompted the commission to form a committee to hear Justice Mwilu’s objection to the DPP’s petition.
But she rushed to court, citing bias from two commissioners — an application that had been dismissed earlier by the JSC. Mr Noor is now accusing Justice Mwilu of “mischief and treating the court to theatrics”.
Through the secretary of public prosecutions, Ms Dorcas Oduor, the DPP said it has never been the intention of Justice Mwilu to conclude the case and the latest application is meant to further delay the proceedings.
“That the choice of parties by the petitioner in her application betrays one fact that she intends to personalise the matter as against some commissioners and ensure that the JSC is intimidated not to discharge its mandate under the Constitution,” Ms Oduor said. The court certified the application for joinder as urgent and directed the case to be heard on September 22.
Ms Oduor said as a demonstration of lack of seriousness by Justice Mwilu in finalising the matter, she has never responded to the allegations levelled against her. The DPP wants the court to lift the orders and allow the commission to conclude the matter.
“That this being the position taken by the petitioner, it leaves no doubt that the petitioner does not wish to be heard by the Court of Appeal or even the JSC, and is bent on ensuring that her strategy of delaying the matter ad in finito is achieved regardless of the inconvenience that all other parties may suffer,” Ms Oduor said.
The DPP reckons that the JSC’s role is purely administrative and the recommendation to form a tribunal to investigate her conduct can still be challenged.
The charges against the DCJ were quashed by a bench of five judges but Mr Haji filed an appeal, and a complaint before the JSC. Meanwhile, the case at the Appellate court was put on hold to allow the JSC hear the petition. The Bench, comprising Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita, ruled that an order used by the DCI to investigate her accounts had no bearing on the case.
“Having found, however, that the DCI illegally obtained evidence against (Justice Mwilu) by gaining access to her accounts with IBL through the use of a court order that had no bearing on her accounts and having found that the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” the Judges said.
Justice Mwilu challenged her planned prosecution, stating that the allegations against her were “pure commercial transactions, concluded in the normal course of the banking relationship between her and the bank”.
She said the matter has no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI were “an abuse of power and arbitrary exercise of authority”.
The High Court judges, however, said the matter should have been referred to the JSC. The DPP had lined up a total of 13 charges over transactions with a collapsed lender, while she was a judge of the Court of Appeal.
