Deputy Chief Justice Philomena Mwilu (pictured) is appearing before the Judicial Service Commission over a petition filed against her in a graft case by Director of Public Prosecutions and the Director of Criminal Investigations.
Justice Mwilu is to face the JSC, chaired by the Chief Justice David Maraga at the JSC Headquarters in Nairobi.
Her defence team comprising led by Siaya Senator James Orengo and lawyer Nelson Havi are seeking to have the session carried out off the glare of the media, a report by KTN News reveals. The panel is set to make a determination on whether media is to be barred or allowed in for coverage.
The hearing spells showdown between DCJ Mwilu and DPP Noordin Haji who is appearing before the commission as a witness.
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Mr Haji and Directorate of Criminal Investigations (DCI) boss George Kinoti who are interested parties in the petition are seeking Justice Mwilu’s removal from office, and are expected to give their evidence and be examined by her lawyers.
On the Judiciary’s plate is the credibility of the Supreme Court. Our sources in the JSC revealed that the commission decided to hear and determine all cases filed against some of the Supreme Court judges.
The appearance of Haji and Kinoti before the commission comes in the wake of a fight between the Judiciary and the Executive.
Sources within the commission told The Standard that it has sent invitation letters to key witnesses in the Mwilu case, including Haji and Kinoti.
“The commission has invited a number of individuals as it starts its sittings to consider the DCJ’s case. Mr Haji and Mr Kinoti have also been invited,” said a source.
Mwilu had said in her case before the High Court that the allegations against her were “a revisit” after the Supreme Court nullified President Uhuru Kenyatta’s election.
The other petitions touch on Chief Justice David Maraga and justices Mohamed Ibrahim and Njoki Ndung’u.
Ibrahim and Njoki declined to have the petition against them marked as settled in a bid to prove their innocence.
The petition stems from the top court’s decision to uphold the Wajir governor’s election.
Mwilu had asked the commission not to hear the petition against her as there is a pending appeal between her, Haji and Kinoti.
In the appeal, Haji argues that the High Court erred by ruling that the DCI illegally obtained evidence that it intended to use against the judge.
Breach of privacy
The High Court found that Kinoti had obtained orders from the magistrate’s court to investigate a Kenya Commercial Bank (KCB) account operated by manufacturing equipment dealer, Blue Nile East Africa.
According to a five-judge bench, which ruled on the case, it is these orders that the DCI relied on to gather evidence against Mwilu.
The judges declared that probing Mwilu’s accounts and transactions with Imperial Bank was a breach of her privacy.
“We have held the manner in which DCI obtained the evidence was illegal in a manner which is detrimental to her right to privacy although it was not pleaded by the petitioner,” the court ruled.
The DPP, in his appeal, argues that the court condemned him unheard as he was not asked to submit or table evidence on how the evidence against the Judiciary’s second in command was obtained. He faulted the High Court for its finding, saying the issue of admissibility of evidence can only be determined by the trial court.
The DPP says the lower court went on a fishing expedition as Justice Mwilu had not raised the issue it determined.
“The learned honourable court erred in law in failing to conclude that a finding as to the manner in which evidence was obtained was a matter for the trial court and not the High Court sitting as a constitutional court – thereby departing from known precedent,” argues Haji.
Despite getting off the hook, Mwilu also filed her appeal. She faults the High Court for failing to find that the intended charges stemmed from a commercial transaction.
Political motive
She claims in her appeal that the charges were driven by political motive, meant to kick her out of the Judiciary.
“The learned judges of the High Court erred in fact and law, in holding that the first and second respondent (DPP and DCI) acted independently, in the initiation of criminal investigations on and intended prosecution of the appellant,” stated Mwilu.
A five-judge bench comprising Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, Chacha Mwita and William Musyoka dismissed everything Mwilu had raised in opposing her prosecution.
However, the judges relied on constitutional provisions on privacy to dismiss the prosecution’s evidence. While faulting the lower court, Mwilu argues that there was no proof that she had abused her office.
The High Court had found that the law allowed the DPP to file a complaint before JSC for her removal from office.
“The learned judges of the High Court erred in fact and in law in holding that a case had been made out and could be made out for bringing a charge of abuse of office and obtaining execution of a security by false pretenses against the appellant without the recourse to the Judicial Service Commission,” she argues.
