Deputy Chief Justice Philomena Mwilu has filed an urgent application seeking to suspend the decision barring her from occupying her office and discharging her duties as the acting Chief Justice.
In the petition before the High Court in Meru, Justice Mwilu further wants the case by Meru resident Isaiah Mwongela transferred to Nairobi for hearing.
“The drastic orders obtained ex-parte are an egregious, outrageous and mischievous act of judicial terror and oppression, obtained fraudulently and illegally through non-disclosure of relevant and material fact, and are inimical to the rule of law and the fair and constitutional administration of Justice,” her lawyer, Julie Soweto, said in an affidavit.
In the petition, Justice Mwilu said Mr Mwongela failed to disclose to Justice Patrick Jeremy Otieno, who granted the orders Friday, that the High Court had already suspended petitions pending before the Judicial Service Commission (JSC) and that a hearing was set for February 18.
She said Mr Mwongela ought to have known that another case by activist Okiya Omtatah, raising similar issues, is pending before the High Court.
The judge further argued that the case is a collateral attack on the authority and orders of the High Court in the two cases and an attempt to circumvent previous orders of the court and embarrass a court of the same jurisdiction.
In his petition, Mr Mwongela said he sought orders to compel the DCJ to stop undertaking any constitutional functions pending the hearing and determination of the petitions for her removal, which are pending before the JSC.
“Whereas the criminal prosecution was quashed by a five-judge bench of the High Court, the judges made several findings imputing the DCJ’s integrity, including that there was a factual and legal basis for the initiation of the charges of abuse of office and obtaining execution of a security by false pretenses against the DCJ,” he said.
The lawyer noted that the courts have previously applied the same standard in respect of other State officers, including governors who have been forced to step aside and stay away from their offices, the presumption of innocence notwithstanding.
“The judiciary should therefore apply the same standard of integrity even where the individual in question is one of their own,” he explained.
Mr Mwongela also said his petition is in public interest and is aimed at a fair crack of the whip - for the DCJ to step aside until those petitions are determined as the DCJ, being the beneficiary of stay orders, is obviously not keen on having the petitions expedited.
"For as long as the petitions against the DCJ are pending before the JSC, the performance of any constitutional function by her offends the tenure, ideals and spirit of chapter six of the Constitution," he added.
