Twists and turns in hearing of petitions against DCJ Mwilu

Judicial Service Commission (JSC) is yet to hear four petitions against deputy chief Justice Philomena Mwilu two years after some were filed.

It has been a series of delays and legal gymnastics upon the crucial constitutional process.

 The first petition was filed in October 2018 by Mogire Mogaka, three others were filed in June 2019, one by Director of Public Prosecutions (DPP) together with Directorate of Criminal Investigations (DCI), while Alexander Mugane and Peter Kirika filed theirs separately.

 Justice Mwilu’s legal team has used all manner of legal tools at their disposal to ensure the commission does not hear the petitions against her.

All this, as the clock ticks for Chief Justice David Maraga who is expected to go on terminal leave on December 15, ahead of his retirement in January 2021. The deputy CJ will be the acting Chief Justice until a new one is recruited.

Conservatory orders

On August 17, Justice Weldon Korir issued conservatory orders barring JSC from hearing the petitions until a case Justice Mwilu has lodged is heard and determined. Justice Mwilu is contesting a decision by JSC to dismiss her application seeking to have two commissioners, Attorney-General Kihara Kariuki and Law Society of Kenya representative Macharia Njeru recuse themselves.

In her case at the High Court, she also alleges that the four petitions by DPP, DCI, Mr Mugane, Mr Kirika and Mr Mogaka relate to the matter which is subject of Court of Appeal.

In the contested decisions of the JSC, Chief Registrar of the High Court Anne Amadi, who is also the secretary to the JSC, dismissed all the points raised by Justice Mwilu.

“The JSC has taken cognisance of the fact that the current chairperson, namely the Chief Justice is due for retirement in January 2021 and that the interim successor would be the petitioner, who is the deputy chief justice. The petitioner is also a member of the JSC and the Judiciary Ombudsman dealing with complaints lodged against other judges and judicial officers. There would be a crisis of confidence in the Judiciary if the four petitions for removal of the DCJ against the petitioner (DCJ) are not urgently dealt with,” noted Ms Amadi in her affidavit filed in court this week.

Ms Mwilu, who was arrested on August 28, 2018 and arraigned in court the same day, has never taken a plea over the corruption allegations levelled against her.

Abuse of office

She, alongside lawyer Stanley Muluva Kiima, was to face 13 counts of abuse of office, obtaining the execution of a security by false pretence, failure to pay taxes to the Kenya Revenue Authority, forgery and uttering a false document.

She challenged the decision by the DPP to charge her and a five-judge bench delivered its verdict on April 31, 2019 and quashed the decision to charge her.

Days later she appealed part of the judgement by the five-member bench of the High Court that had directed that only JSC could deal with allegations against her.

It was then that petitions by DCI, DPP, Mr Mugane and Mr Kirika were filed at JSC regarding her conduct as a judge on June 27, 2019 in addition to the one filed by Mr Mogaka on October 4, 2018.

Due to Covid-19 pandemic, the hearing of the applications for recusal were not heard on March 18 and 19 as had been scheduled and the matter was heard on July 27 after several mentions.

On July 10 during one of the mentions, the lawyers for DCJ opposed virtual meetings and suggested the commission invite all parties for a physical meeting, a request which was dismissed by the commission.

Omission and commission

The lawyers also sought to have the matters adjourned all together citing that Dr John Khaminwa (84), one of her lawyers was vulnerable and that the hearing should only take place once the pandemic had been tamed across the world.

Against commissioner Macharia, Justice Mwilu had stated that he had actively worked to have her removed as DCJ through various acts of omission and commission.

Justice Mwilu had opined that the AG, being part of the executive had pre-conceived bias against her since he is part of the team that had called for her criminal prosecution.

The AG dismissed the claims.

“Another truth which is a reality now is that amongst the Supreme Justices, we shall or may not have former JSC commissioners. It cannot therefore be stated in general terms, that any Supreme Court Judge who sits or sat in the JSC will as a matter of cause not adjudicate in a matter where JSC is party,” noted commissioner Kariuki .

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