Confusion in Judiciary as judge ‘bars’ Mwilu from acting CJ role

A Meru court on Friday threw the Judiciary into disarray after issuing orders restraining Deputy Chief Justice Philomena Mwilu from occupying her office and discharging her duties as acting Chief Justice. 

Justice Patrick Jeremy Otieno issued orders suspending the DCJ as a judge of the Supreme Court and barred her from carrying out her duties as a member of the Judicial Service Commission (JSC).

The judge further restrained Justice Mwilu from occupying the office of the Judiciary Ombudsman pending the determination of a case filed by one Isaiah Mwongela.

The petitioner says he has evidence that provided sufficient grounds for instituting criminal proceedings against Ms Mwilu and thus was not fit to continue holding office.

In a sworn affidavit, Mr Mwongela, who hails from Maua, Meru County, says he filed the petition in public interest.

The decision has caused confusion as the DCJ, or indeed any other judge, can only be removed from office through a decision by a tribunal appointed by the President to investigate her conduct. 

Law Society of Kenya president Nelson Havi said in a tweet, “A Judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case”.

There have been several attempts to stop the DCJ from discharging her functions but all of them have failed, including a petition by activist Okiya Omtatah seeking to stop her from becoming the acting CJ following the retirement of Chief Justice David Maraga on January 12. 

Other four petitions, including two filed by Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti are pending before the JSC. 

The case by the DPP before the JSC was, however, quashed by the High Court, when Justice Mwilu challenged the manner in which the commission was handling it. 

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. The case at the Appellate court was put on hold to allow the JSC hear the petition.

Planned prosecution

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 Imperial Bank. The bank was later placed under receivership. 

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 was an abuse of power and arbitrary exercise of authority.

A bench of five judges, which quashed the charges, however said the matter should have been referred to the JSC. 

The Meru court’s decision complicates the planned recruitment of a Chief Justice to replace Justice Maraga, who retired on January 12 after attaining the retirement age of 70 years.

The JSC commenced the process soon after Justice Maraga retired by calling for applications, an exercise that closes on February 10.

In a Gazette notice published on January 18, Justice Mwilu, in her capacity as the acting CJ, declared the office vacant, setting the stage for interested jurists to apply for the job.

Apart from the CJ’s post, the commission also called for applications for the position of the Supreme Court judge to replace Justice JB Ojwang, who retired in February last year. 

Interested candidates have up to February 10 to apply and thereafter the JSC will have 28 days to scrutinise the applicants.

Justice Mwilu is the Supreme Court's representative in the JSC and will play a crucial role in deciding the country's next Chief Justice. 

The JSC had planned to start the process of picking Justice Maraga's successor in October 2020, six months to his retirement, but the move was thwarted by the CJ and a section of the members of the commission, arguing that it was against the law.

Although Justice Maraga had agreed with the initial plans, he cancelled a meeting hours before the commission met.

The law does not provide for the advance recruitment of the Chief Justice until the mandate of the office holder expires. According to Section 30 of Judicial Service Act, read together with the first schedule, the position of the office of the CJ cannot be advertised until the position falls vacant. The law only anticipates a vacancy when the holder resigns, dies, retires or attains the age of 70, or is removed through a tribunal. 

Yesterday’s decision, if implemented, would complicate the working of the Supreme Court, which would be left with four judges. 

The Constitution states that the Supreme Court is properly constituted, for purpose of its sittings, when it is composed of at least five judges. 

Maraga's exit

The exit of Justice Maraga left five judges at the apex court: DCJ Mwilu, and Justices Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola.

Among the cases that would be affected is an advisory opinion filed by Kericho and Nandi county assemblies over the proposed amendment of the Constitution through the Building Bridges Initiative (BBI) Bill.

In the petition before the High Court in Meru, Mr Mwongela said the offence of abuse of office may amount to official misconduct, as it relates to an alleged advantage obtained by virtue of Justice Mwilu being a judge of the Court of Appeal. And if proved to have been in breach of the Judicial Code of Conduct, the case ought to have been referred to the JSC.

But he said JSC failed to make her step aside, pending the hearing of the petitions against her. 

"This amounts to differential treatment of judicial officers as against other state officers who would, in similar circumstances, be required to step aside," he said in the petition.

He said that having failed to enforce the required standard of moral and ethical probity against the DCJ, the High Court has a duty to enforce the same.

"The 2nd Respondent’s (JSC's) failure to enforce the required standard of moral and ethical probity as against the 1st Respondent is, ipso facto, a dereliction of the 2nd Respondent’s constitutional duty," he added 

Before she joined the Judiciary, Justice Mwilu had served as an advocate for over 32 years. She was later elevated to the Court of Appeal before succeeding Kalpana Rawal as the Deputy CJ. 

Those supporting her think she should go for the CJ post and become the country's first female Chief Justice and the head of the Judiciary as well as the president of the Supreme Court. 

Justice Otieno fixed the case for hearing on February 12.

Additional reporting by Justus Ochieng and Charles Wanyoro.