Deputy Chief Justice Philomena Mwilu has claimed that the Judicial Service Commission (JSC) is biased in handling the petitions that are seeking her removal from office over alleged gross misconduct.
Though she is a member of the JSC representing Supreme Court judges, the DCJ says the commission also infringed her rights in admitting four petitions filed to hound her out of the Judiciary.
She says the commission admitted the petitions when it lacked rules to govern its business and contrary to its own regulations, which prevent it from entertaining disputes that are proceeding in court.
The petitions at the JSC were filed by civilians Peter Kirika and Alexander Mugane, both in June 2019, and Mogire Mogaka, in October 2018, while the fourth was jointly lodged by the Office of the Director of Public Prosecutions (ODPP) and the Directorate of Criminal Investigations (DCI) in 2019.
According to the petitioners, Justice Mwilu is unfit for public office due to corruption, failure to pay taxes, forgery and uttering a false document.
The petitioners also claim that she was involved in the irregular sale and acquisition of property, and that her continued participation in judicial affairs is a mockery of the Constitution.
But while addressing the High Court Monday during the hearing of her case against the intended disciplinary proceedings, Justice Mwilu stated that the decision of the commission to start working on the complaints was contrary to fair administrative action.
She told the three-judge bench that the JSC not only treated her differently, but she was also not afforded equal opportunity.
Through her legal team of seven lawyers led by James Orengo (Siaya Senator), the DCJ told court that she raised a preliminary objection before the JSC but the objection is yet to be formally considered.
“The petitions at JSC cannot be entertained on the basis that the matter is sub judice. She had raised a preliminary objection, which has not been formally considered. JSC has made up its mind in the objection,” her other lawyer, Ms Julie Soweto, told the court.
The bench comprises Justices Juma Chitembwe, Weldon Korir and Roselyne Aburili.
Ms Soweto explained that the petitions are sub judicial because the facts are similar to those that the Director of Public Prosecutions (DPP) was using at a magistrate’s court in a criminal case that was quashed by the High Court in May 2019.
The bench heard that after the High Court prohibited the state from proceeding with the criminal case against the DCJ, the prosecution filed an appeal challenging the orders.
The DPP, together with the DCI, also filed a joint petition at the JSC in 2019, saying Justice Mwilu was unfit to hold public office due to alleged corruption, failure to pay taxes, forgery, and uttering a false document.
However, Ms Soweto argued that since the root of the petition for Judge Mwilu’s removal from office is the criminal case that was quashed and the judgement is subject to an appeal at the appellate court, the JSC ought not to have entertained the matter as filed by the two state agencies.
“JSC’s own practice is that where a matter is pending before a court of law, it will not entertain that matter until the court process is concluded. In Judge Mwilu’s case, JSC broke its own bounds and decided to entertain the petitions, contravening its practice and procedure,” said Ms Soweto.
Their facts for removal of Justice Mwilu are similar and relate to a criminal case that was levelled against the judge in 2018 on improper dealings with the Imperial Bank Ltd, which was later placed in receivership.
In urging the bench to quash the petitions and declare the disciplinary proceedings unconstitutional, the lawyer explained that the rule of sub judice bars proceedings of a case where the issues in dispute are alive in another dispute.
“The court will determine that what is before JSC is the same matter that was before the anti-corruption court which generated the High Court case. The memorandum of appeal by DPP and DCI shows that they speak of matters pending at JSC,” said judge Mwilu’s lawyers.
