Besieged Deputy Chief Justice Philomena Mwilu dealt Director of Public Prosecutions Noordin Haji a blow yesterday as she successfully halted criminal proceedings, albeit temporarily.
Backed by a battery of 30 lawyers, Mwilu dashed to the High Court where Justice Chacha Mwitu granted her orders stopping proceedings in the lower court where she faces corruption-related charges.
Her lawyers, a who's who in the legal fraternity and political circles, include Wiper leader Kalonzo Musyoka, James Orengo, John Khaminwa, Haroun Ndubi and Nelson Havi.
Judge Mwita ruled: "I allow the application filed by the Deputy Chief Justice seeking to stop proceedings in the lower court and I hereby grant a stay, meaning stopping the case."
DCJ Mwilu had argued that her alleged impropriety while handling Imperial Bank cases is purely a commercial matter and not a criminal offence.
For the second day running, Mwilu found herself at the dock.
Mwilu's reprieve was short-lived because Mwita's order contained an error and did not relate to the case.
The order referred to case number 292 of 2018, as opposed to 38 of 2018.
"As far as I am concerned, there is no order stopping this trial. Court orders must be clear, specific and must give no room for speculation," anti-corruption chief magistrate Lawrence Mugambi ruled once Mwita's order was served on him.
The magistrate, however, gave Mwilu and her lawyers an opportunity to go back to the High Court to correct the mix-up.
Orengo had put up a spirited fight before Mugambi to ensure the DCJ does not plead to the charges.
Another team led by Okong’o Omogeni appeared before the High court — all accusing Haji and DCI George Kinoti of using a criminal process to maliciously remove Mwilu from office.
But Secretary Public Prosecutions Dorcas Oduor maintained that Mwilu’s trial should not be misunderstood to target the Judiciary — only an individual.
While Mwilu’s lawyers argued that she should not have been dragged to court, Oduor said the decision to charge her was proper and in the public interest.
Orengo said particulars in the charge sheet relate to a commercial dispute and thus the criminal court was not the right forum.
Justice Mwita said Mwilu has raised serious constitutional questions, which the court ought to address first.
"The question that arises for determination is whether a commercial transaction between a party and a commercial institution would amount to a criminal offence," the judge said.
Mwilu argues that charges against her were manufactured with malicious and ulterior motives.
"The allegations are pure commercial transactions concluded at arm’s length and which have no rational correlation with the pursuit of criminal justice," lawyer Omogeni told the judge.
In her sworn affidavit, Mwilu said her trial is part of wider scheme meant to embarrass her as the Deputy Chief Justice and expose her to ridicule and harassment.
"The charges have been commenced in abuse of the court process with the singular objective of embarrassing me," she said.
Doubt was cast over the entire process the DCJ's arrest and hurried arraignment past gazetted court hours. Her lawyers asked why the DPP did not take the complaint before the Judicial Service Commission.
"The trial against the DCJ is a collateral attack on Judiciary and weaponisation of criminal justice," Orengo said.
But Oduor said Mwilu’s lawyers did not challenge the jurisdiction of the magistrate's court.
She also said the DPP is mandated to institute criminal charges against anyone and by taking Mwilu to court, he acted in the public interest.
On Tuesday, DPP Noordin Haji told the media that the decision to charge Mwilu had not gone down well with some people. However, he called it the right decision in law.
"There is no submission before the court that you have no jurisdiction. No objections to the charges," she said.
The court was told the DPP is required to uphold the rights of Kenyans, but also prevent abuse of the process.
Mwilu's case at the High Court will be heard on October 9. Attempts to excuse her from attending proceedings at the Magistrate's Court were unsuccessful.
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