DCJ Mwilu accused of tricking court in battle to save her job

The Judicial Service Commission (JSC) has accused Deputy Chief Justice Philomena Mwilu of tricking the High Court into suspending hearing of petitions for her removal from office.

The JSC, in an appeal against the High Court’s order suspending hearings against Justice Mwilu, says the DCJ is using delay tactics to slow down the four cases filed for her removal.

High Court judge Weldon Korir in September issued an order barring the JSC from continuing with the four petitions, after Justice Mwilu claimed that the proceedings were biased against her.

But the JSC now says that Judge Mwilu did not disclose a lot of crucial information to Justice Korir, and which would have helped the judge rule that a suspension of proceedings was not warranted.

This is the second Court of Appeal battle, as the two sides are still before the same institution over a 2019 case that terminated criminal proceedings against the CJ’s deputy.

Justice Mwilu was initially charged in the Chief Magistrate’s Court with tax evasion, irregular recovery of loan collateral and abuse of office. But the charges were quashed last year by the High Court, which ruled that the allegations should had been taken to the JSC.

Both Justice Mwilu and Director of Public Prosecutions Noordin Haji filed appeals against the High Court decision.

And when the appeals came up for hearing, Judge Mwilu asked that they be adjourned pending the outcome of the petitions before the JSC.

And in July, Justice Mwilu protested the JSC’s decision to hear four petitions filed for her removal from office on grounds that both she and the DPP were before the Court of Appeal.

“Both the DCJ and the DPP appealed from the said judgment for various reasons and the two appeals are still pending hitherto. When the two appeals came up for case management conference before the Deputy Registrar on November 12, 2019, the DCJ applied for adjournment on the basis of the petitions for her removal from office pending before the JSC,” lawyers Charles Kanjama and Paul Muite, representing the JSC, have told the Court of Appeal.

The JSC adds that Justice Korir’s order has interfered with its mandate to hear petitions for the removal of the top judge. The institution argues that it is an independent body hence cannot be directed on how to handle its affairs.

Justice Mwilu is yet to file responses to the JSC’s Court of Appeal application to quash suspension of its hearings.

On July 10, 2020, the JSC sat to lay the ground for the hearing of four petitions filed for the removal of the DCJ, who has been accused of abusing her position to acquire irregular loans, tax evasion and misconduct as a judge of the Supreme Court.

The virtual mention was to be a routine process of agreeing on how the case will be handled, and possibly confirm hearing dates.

But instead, a vicious battle broke out that has now culminated in the second round of High Court and Court of Appeal cases for the two sides.

The DCI and DPP argue that Justice Mwilu is employing time wasting tactics to evade justice.

But the DCJ wants the courts to determine whether independent office holders like the DCI and DPP can legally file petitions for the removal of judges.

The embattled judge is facing four petitions for removal before the JSC and risks becoming the second deputy chief justice to be booted from office for gross misconduct.

Mr Mogire Mogaka filed the first petition that was received by JSC on October 9, 2018.

Read: Court suspends criminal case against Philomena Mwilu

Mr Alexander Mugane and Mr Peter Kirika filed separate petitions that the JSC received on June 11, 2019.

DCI boss George Kinoti and DPP Haji jointly filed a petition received on June 27, 2019.

The JSC found that all four petitions were worthy of a hearing and ruled that they shall all proceed concurrently.

Supreme Court

In addition, the institution held that the petitions shall be heard by a panel consisting of all commissioners with the exception of Justice Mwilu, who represents the Supreme Court at the JSC.

But the High Court in September suspended the JSC from proceeding with the four petitions.

Justice Korir issued the order after the DCJ claimed that she cannot get a fair hearing before the JSC.

In the petition, Justice Mwilu claims that state agencies such as the Office of the DPP and the DCI are not allowed to file petitions for the removal of a judge.

She insists that previous petitions that saw ex-DCJ Nancy Baraza and other judges removed were filed by individual office holders and not state agencies. And Justice Mwilu now faults the JSC for allowing state agencies to file the petitions.

The DCJ has also claimed that the JSC’s decisions so far on how to proceed with the case have not respected rules of natural justice such as “a rushed virtual hearing”.

The July 10, 2020 JSC proceedings were intended to set in motion the hearings, but a screaming match ensued between lawyers representing the DPP and Justice Mwilu, and spun off fresh battles at the High Court and the Court of Appeal.

Delaying the case

But Mr Haji and Mr Kinoti have now told both the JSC and the courts that Justice Mwilu is hell bent on delaying the case from proceeding.

On July 10, Chief Justice David Maraga led the JSC in hearing both sides of the fence as to whether all parties were ready to kickstart the case, which will certainly go down as one of the most important in Kenya’s history.

Justice Maraga first went through the list of petitioners and realised that only Mr Haji and Mr Kinoti were represented on the day.

After Judiciary registrar Ann Amadi confirmed that Mr Kirika, Mr Mugane and Mr Mogaka were neither present nor represented, the first fight broke out.

Lawyer Taib Ali Taib for Mr Kinoti and senior prosecutor Alexander Muteti for the DPP proposed that the proceedings continue without the other petitioners.

Mr Taib argued that the JSC’s mandate ended with confirming that all petitioners were served with necessary pleadings and informed of hearing dates. He added that all parties had filed their relevant documents.

But Justice Mwilu’s team led by John Khaminwa, Okong’o Omogeni, Nelson Havi and Julie Soweto wanted the case halted until all the other petitioners are represented in the virtual hearing. They held that making a determination without the other petitioners could raise a lacuna, as there will be the question as to whether the other three petitions are still legally active before the commissioners. The JSC declined to adjourn the matter.

Cases adjourned

Immediately after, Mr Khaminwa applied to have all cases against Justice Mwilu adjourned until the coronavirus pandemic is contained.

Mr Khaminwa argued that the hearings must be physical, and that such a move right now would put his life at risk being nearly 84 years old.

The lawyer insisted that he is a vulnerable person under the Ministry of Health guidelines released in March to stop the spread of Covid-19, and that even meetings with other lawyers representing Justice Mwilu were placing his life at risk.

He added that Justice Mwilu is entitled to legal representation of her choice, and that he could not abandon his client hence the best way to proceed was to postpone the case pending containment of Covid-19.

Mr Taib then suggested that each party file their written arguments and allow the JSC to make a determination.

Justice Mwilu’s team insisted that they must present their arguments verbally, and Mr Khaminwa threatened to walk out if the case proceeded through written arguments.

Mr Taib held that the insistence by Justice Mwilu’s team to have a physical hearing is a time wasting tactic, as written arguments had already been filed with the JSC.

Physical hearings

Just as the JSC commissioners were preparing to take a five-minute break to deliberate on whether to have virtual or physical hearings, Justice Mwilu’s team sought to file fresh evidence to back their push for Mr Njeru’s omission from the petitions.

While Ms Soweto insisted that the evidence is incriminating, Mr Taib argued that the move was evidence that Justice Mwilu’s team is on a time-wasting mission.

After the commissioners returned and gave their decision to have virtual hearings, Mr Khaminwa once again brought up his application to push hearings to after containment of the Covid-19 pandemic.

Justice Mwilu’s team also claimed that they were being muted from time to time during the mention, and claimed that it could be a ploy to lock them out of crucial parts of the proceedings.

The JSC dismissed Mr Khaminwa’s application. Two months later, Justice Mwilu moved to the High Court, arguing that she cannot get a fair hearing at the JSC.

She wants the JSC stopped from considering the four petitions.

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