• The charges relate to credit transactions between her and Imperial Bank Limited and an alleged failure to pay stamp duty.
• Mwilu's lawyers say allegations are commercial transactions with no connection to criminal justice.
Image: COLLINS KWEYU
Deputy Chief Justice Philomena Mwilu accused the DPP on Tuesday of "making up" charges to make her appear guilty of a crime that has no complainant.
The hearing of Mwilu’s case started with her lawyers saying the charges leveled against her cannot stand.
Mwilu is represented by lawyers James Orengo, Nelson Havi, Julie Soweto, John Khaminwa, among others.
The charges relate to credit transactions between her and Imperial Bank Limited and an alleged failure to pay stamp duty on four properties she purchased between 2014 and 2016. The bank is under receivership.
Mwilu also faces charges of abuse of office, unlawful failure to pay taxes to KRA and forgery.
On Tuesday, Havi asked the court to quash and declare unconstitutional the criminal charges facing their client.
He told justices William Musyoki, Mumbi Ngugi, Hellen Omondi, Francis Tuiyott and Chacha Mwita that the allegations against Mwilu are pure commercial transactions which have no practical connection with the pursuit of criminal justice.
Any claim concerning the banking and commercial transactions should have been pursued by the bank through a civil contractual relationship mechanism, Havi said.
The lawyers said the bank has never confronted Mwilu with any complaints or issues on any of the alleged matters.
“My legitimate expectation is that if there were any alleged issues the bank would take up and raise with me the matter first through the contractual relationship channels,” Mwilu said.
“Let it be known that the Director of Criminal Investigations is not the government inspector. You cannot hover around and purport to inspect performance of commercial transaction. DCI is a busybody and an intruder never appointed to oversee commercial issues,” Havi said.
Soweto said the decision to prosecute Mwilu was not based on any evidence and no basis has been laid before the court.
“The decision to prosecute the DCJ was instigated and pre-determined by the DPP. He went on a fishing expedition looking for dirt against Mwilu and if he didn’t find any, he made up the charges and brought it on her,” Soweto said.
The lawyer took the court through the charges in an attempt to prove his claims.
On count one, it is alleged that Mwilu used her office as Court of Appeal judge to imprperly confer a benefit of Sh12 millin to herself from the bank.
The offence was allegedly committed between August 15, 2013 and October 23, 2013 at Imperial Bank headquarters in Westlands, Nairobi.
Soweto raised questions on who the complainant in the matter was.
She said for it to be sustained, there must be a complainant as it is the very foundation of a charge.
“The complainant could be the bank, but nowhere is it shown the bank laid a complaint against Mwilu. This is a civil transaction sought to be turned into criminal case even when there’s no basis for it,” she said.
In another count where Mwilu is accused of forging a National Bank of Kenya cash deposit document, Soweto said there's no official statement from the bank officials complaining.
“The manner in which the DPP and DCI have gone about in seeking to prosecute Mwilu is honestly dishonest. The sole purpose or reason why she is charged is to parade her, to vilify her in the public gallery as the most wanted criminal,” Soweto said. Hearing continues Wednesday.