Will Mwilu survive attempts to hound her out of the Judiciary?

“She may not be an angel. But the manner in which she is being hounded is suspect. There are many other people with scandals high up to heaven yet they are not hounded the way they are hounding Justice Mwilu,” lawyer and political analyst Martin Oloo says.

Following the nullification of the presidential election in 2017, a number of petitions by supporters of President Uhuru Kenyatta filed a number of petitions seeking to remove the Supreme Court judges who formed the majority that threw out the presidential election. Many of those petitions were either abandoned or thrown out.

In the meantime, Justice Mwilu’s car was targeted and her aide shot on the eve of a key hearing of a matter that would have had a major bearing on the repeat presidential election.

Suspicion of corruption

In August 2018, it was the turn of the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) to swing into action against the Deputy Chief Justice. She was arrested on suspicion of corruption, failure to pay tax, and improper dealings with Imperial Bank, now in receivership.

Though the High Court stopped her prosecution because the DCI had used an illegally obtained court order to access her bank accounts, the judges said nothing stops a sitting judge from being criminally charged.

The DPP has since appealed the ruling as has Justice Mwilu too. In the meantime, this is still pending before the JSC the DPP’s petition to have her removed from office.

Alongside the DPP’s petition, two individuals, Peter Kirika and Alexander Mugane, also lodged petitions against Justice Mwilu to have her removed from office.

As former Chief Justice David Maraga began his terminal leave and handed over to Justice Mwilu to act in the office of the Chief Justice, activist Okiya Omtatah moved to court to block her. Besides Mr Omtatah’s petition, other petitions have been filed in an attempt to block her from serving as acting Chief Justice.

The Meru High Court orders are the latest in a series of legal and political manoeuvres to dispatch Justice Mwilu from the Judiciary.

Sideshows

The concerted efforts against the deputy chief justice, Mr Oloo said, are worrying. 

“It’s unfair. It is a bit too much to ask of an individual,” he said.

Kisumu-based lawyer James Mwamu termed the hounding of Justice Mwilu as sideshows meant to frustrate the work of JSC to recruit the next Chief Justice.

“I don’t think this is the time to attempt to remove Justice Mwilu because she is managing a transition. Those attempts to remove her so as to create space for someone else are not good. Right now all efforts should be geared towards getting a new Chief Justice. All these are sideshows and I think they have something to do with 2022,” said Mr Mwamu.

Justice Mwilu joined the Judiciary in 2008 as a judge of the High Court and eight years later in October 2016, she had risen through the ranks to be appointed as Deputy Chief Justice and judge of the Supreme Court. Between November 2012 and October 2016, she was a judge of the Court of Appeal.

The decision by Justice Otieno continued to attract criticism with lawyers terming it an affront to the rule of law. 

Law Society of Kenya (LSK) president Nelson Havi wondered how Justice Otieno issued the order yet another High Court Judge, Anthony Mrima had dismissed a similar application.

“A judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case,” said Mr Havi.

Makueni MP Daniel Maanzo, who is also Justice Mwilu's lawyer, said there is no legality in removing a judge through an ex parte court order. 

Additional reporting by Justus Ochieng’