Court bars Mwilu from holding DCJ office, acting as Chief Justice

A Meru High Court has issued orders restraining Deputy Chief Justice Philomena Mwilu from holding her office or acting as Chief Justice, until a case filed by a Meru resident is heard and determined.

Justice Patrick Jeremy Otieno also restrained Justice Mwilu from sitting in the Judicial Service Commission (JSC) and being a member of the Ombudsperson of the Judiciary until the case filed by one Isaiah Mbiti Mwongela is concluded.

The decision to bar the DCJ from sitting in the JSC stops her from participating in process of selecting the CJ to succeed David Maraga, which is expected to begin after applications close on February 10.

The ruling threw the Judiciary into confusion because as a judge, the DCJ can only be removed through a tribunal appointed by the President to investigate her conduct. 

Some four petitions against Justice Mwilu, including two filed by Director of Public Prosecution (DPP) Noordin Haji and Director of Criminal Investigations George Kinoti, are pending before the JSC. 

The case by the DPP before the JSC, was however suspended by the High Court when Justice Mwilu challenged the manner in which it was being handled.

The charges against the DCJ were quashed by a bench of five judges but Mr Haji filed an appeal and at the same time, a complaint before the JSC. 

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

Public interest

In a sworn affidavit, Mr Mwongela who hails from Maua, Meru County, cites past cases against DCJ Mwilu in saying he filed the petition in the interest of the public.

The petitioner says he has sufficient grounds for instituting criminal proceedings against Justice, hence her unfitness for office.

He has named the DCJ and the JSC as respondents and the Attorney-General, Director of Public Prosecution (DPP) and Director of Criminal Investigations (DCI) as interested parties.

Mr Mwongela furthers says that Justice Mwilu’s positions as a member of the JSC and the Judiciary Ombudsperson could undermine her prosecution since she plays a critical role in disciplining members of the Judiciary.

Through lawyer Marius Maranya, the petitioner says it would be ridiculous for the DCJ to continue serving in those capacities while her complaint lies before the JSC.

He cites criminal case 38 of 2018 and another filed at the Nairobi chief magistrate’s court as the bases for the CJ’s removal.

In the case filed under the Anti-Corruption and Economic crimes Act, Justice Mwilu is accused of using her office to improperly confer a benefit of Sh12 million to herself.

The charge sheet alleges that she committed the offence between August 15 and October 23, 2013, at Imperial Bank Limited’s headquarters in Westlands, Nairobi, while serving as a judge of the Court of Appeal.

Ms Mwilu also faced a charge of obtaining execution of a security by false pretences, contrary to section 314 of the Penal Code.

It was alleged that on January 12, 2016 at the IBL headquarters, Ms Mwilu and others, with intent to defraud, induced Mohamud Ahmed Mohamud, the receiver manager, to execute discharge of securities for a Sh60 million loan.

Mr Mwongela argues that the allegations raised eyebrows on Justice Mwilu’s integrity and suitability to hold office since she can influence any attempt at her prosecution.

Judicial immunity

A five-judge bench had ruled that the DPP was right to institute the charges against Justice Mwilu.

Mr Mwongela says these were grounds for Ms Mwilu to be removed from office for breach of the judicial code of conduct as well as gross misconduct and misbehavior.

He cited Articles 168 (1)(b) and 168 (1) (e) of the Constitution.

“The standard of moral and ethical probity required of the first respondent is that required of a constitutional office holder in respect of whom a criminal prosecution has commenced. This standard requires that a constitutional office holder who is the subject of a criminal prosecution is either suspended or steps aside and does not discharge the function of the constitutional office until the criminal prosecution is concluded,” says Mr Mwongela.

He argues that judicial immunity does not shield a judicial officer from criminal prosecution.

“Acts of a criminal nature committed outside the scope of judicial function may be investigated and the judicial officer arrested and prosecuted directly without recourse to the disciplinary for removal process,” he said quoting the findings of the bench.

Mr Mwongela said the fact that the court acknowledged there was a legal and factual basis for the DPP to charge Justice Mwilu left her integrity in tatters.

Justice Otieno set the hearing for February 12.

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