• Does criminal prosecution of a sitting Supreme Court judge violate the independence of the Judiciary?
• Mwilu cites ulterior motives and malice in the decision to charge her.
Image: FILE
Deputy Chief Justice Philomena Mwilu today will know will whether she will be prosecuted over corruption allegations.
A five-judge bench that heard the case in March this year will also determine whether the DPP can institute criminal proceedings when the Judicial Service Commission has taken no action against a sitting judge.
The JSC's inaction is despite knowledge and information about the alleged criminal conduct of the judge.
Also to be determined is whether the criminal prosecution of a sitting Supreme Court judge amounts to encroachment on the independence of the Judiciary.
Also in question is whether the DPP can lawfully fail to commence criminal proceedings against a sitting judge without violating the Constitution.
Last year Mwilu obtained High Court orders stopping her prosecution.
The charges facing her 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.
The DCJ has on numerous occasions said that the criminal charges sought to be pursued by the DPP arise out of three commercial lending transactions in the course of normal banking relations between her and the Imperial Bank of Kenya.
She says there are remedies other than her prosecution. The DCJ says there was malice and ulterior motives in deciding to charge her.
The transactions were known when she was vetted for the Supreme Court, she says. The allegations against her are purely commercial transactions that have no connection with the pursuit of criminal justice.
Mwilu is represented by lawyers Nelson Havi and James Orengo.
The justices are William Musyoki, Mumbi Ngugi, Hellen Omondi, Francis Tuiyott and Chacha Mwita.
She argued that any claim concerning banking and commercial transactions should have been pursued by the bank through a civil contractual relationship mechanism.
“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.
Director of Public Prosecutions Noordin Haji, through Queens Counsel Khawar Qureshi, urged the court to dismiss Mwilu’s petition and let the law take its course.
The QC said the DCJ failed to prove that the corruption charges politically instigated as earlier alleged.
He said the DPP followed the law in preferring the charges and the decision was based purely on evidence, the law and public interest.
“There is simply no basis, to assert that the DPP’s decision was done by improper consideration. There is also no evidence to suggest it was politically motivated," Qureshi said.