Judge recuses himself from Mwilu case citing intimidation
Deputy Chief Justice Philomena Mwilu.
What you need to know:
- Justice Patrick Jeremy Otieno informed the parties that he had decided to recuse himself from the matter.
- The judge had on January 29, 2021 issued orders restraining DCJ Mwilu from holding her office or acting as Chief Justice.
A High court Judge hearing a matter where a petitioner wants Deputy Chief Justice Philomena Mwilu barred from holding office or acting as Chief Justice has recused himself from the case citing intimidation.
Justice Patrick Jeremy Otieno on Wednesday withdrew from the case after lawyer Nelson Havi, who is part of Ms Mwilu’s defence team, accused him of “mismanaging” the case file, after he rescheduled a morning virtual hearing.
He referred the matter to Meru Presiding Judge Edward Muriithi for direction.
The judge had at around 10am explained that the courier ferrying the file together with others which he was handling while away on vacation in Migori, had not arrived and asked for a few more hours.
He promised to have the file by 1pm and asked the parties to meet at 2pm for the virtual hearing since courts are on recess.
But in response, Mr Havi accused the judge of laziness and mismanaging the file. Havi threatened to report the judge to the Judicial Service Commission, where Ms Mwilu is a member.
Havi’s sentiments
Other lawyers, among them Ms Julie Soweto, who was leading Ms Mwilu’s team, and Marius Maranya, acting for the petitioner Isaiah Mbiti, and activist Okiya Omtata had agreed with the judge.
When the matter came for hearing at 2pm, Justice Otieno informed the parties that he had decided to recuse himself from the matter.
He argued that whichever direction the matter took, people would think that he was swayed by Mr Havi’s sentiments to either rule in favour of Ms Mwilu or against her.
The judge at the same time told Mr Havi that he was at liberty to lodge any complaint with JSC, provided that he filed it as an individual but not as the President of the Law Society of Kenya.
The judge had on January 29, 2021 issued orders restraining DCJ Mwilu from holding her office or acting as Chief Justice.
Justice Otieno had also restrained Ms Mwilu from sitting in the Judicial Service Commission, being a member of the Ombudsman of the judiciary pending inter partes hearing of the case filed by Isaiah Mbiti Mwongela.
Criminal proceedings
The petitioner says he has evidence that provided sufficient grounds for instituting criminal proceedings against Ms Mwilu and thus was not fit to continue holding office.
In a sworn affidavit, Mr Mwongela who hails from Maua, Meru County, says he filed the petition in public interest.
He has named Ms Mwilu and the JSC as respondents, while Attorney General, Director of Public Prosecutions and the Director of Criminal Investigations are interested parties.
The petitioner says that by the virtue of her being a member of the JSC and Ombudsman of the judiciary, she plays a critical role in disciplining members of the judiciary which could undermine such prosecution.
He says it would be ridiculous for Ms Mwilu to continue sitting as a member of the judiciary’s ombudsman while her complaint had been lodged with the JSC.
