Deputy Chief Justice Philomena Mwilu has been barred from holding her office or acting as Chief Justice until a case filed by Isaiah Mbiti Mwongela, a Nairobi lawyer is heard and determined.
Deputy Chief Justice Philomena Mwilu has been barred from holding her office or acting as Chief Justice until a case filed by Isaiah Mbiti Mwongela, a Nairobi lawyer is heard and determined.
Meru High Court Judge, Justice Patrick Jeremy Otieno further restrained Justice Mwilu from sitting in the Judicial Service Commission (JSC) until February 12.
According to Mwongela’s petition, he alleges that Justice Mwilu used her office to improperly confer a benefit to herself of KSh12 million from Imperial Bank Limited.
His petition cites Articles 168 (1)(b) and 168 (1) (e) of the Constitution.
“The standard of moral and ethical probity required of the first respondent is that required of a constitutional office holder in respect of whom a criminal prosecution has commenced. This standard requires that a constitutional officeholder who is the subject of a criminal prosecution is either suspended or steps aside and does not discharge the function of the constitutional office until the criminal prosecution is concluded,” says Mr Mwongela.
“Acts of a criminal nature committed outside the scope of judicial function may be investigated and the judicial officer arrested and prosecuted directly without recourse to the disciplinary for removal process.”
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Waikwa Wanyoike, Litigation Director at the Open Society Justice Initiative described the orders as ‘shocking and defy the legal logic underlying conservatory orders especially because the Judge issued very consequential orders without hearing DCJ’.
“The biggest implication of Justice Otieno’s orders suspending Ag. CJ Philomena Mwilu is that we do not have a competent Supreme Court because only four Judges are left and the Constitution requires that the Supreme Court must have five judges to be properly and competently constituted.”
Chapter 10 of the Constitution states that the Chief Justice may be removed from office if a Tribunal appointed to inquire into his conduct finds that he/she should not remain in office.
Nelson Havi, President of the Law Society of Kenya in a rejoinder he Tweeted, “A Judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case. Only two explanations for this: deep State has a lot of dirt on Justice P J Otieno and have banked a post-dated cheque given to it or the order is a fraud.”
Mathew Nyabena, Chairman Mombasa law Society, LSK coast branch and Chair LSK branch Chairs Caucus described the move as ‘a coup against the constitution’.
“We have clear provisions on how to suspend a sitting Judge. Making drastic orders ex parte casts doubt as to motives of Judge Otieno. Does he have pending complaints himself? If yes he should declare,” he Tweeted.
