The Director of Public Prosecutions has filed a notice of appeal against a court decision that quashed the criminal charges facing Deputy Chief Justice Philomena Mwilu.
“Being dissatisfied with the judgment of the High Court given on May 31, we intend to appeal to the court of appeal against those parts of the decision which upheld the petitioner's contentions or otherwise allowed the petition,” Noordin Haji said the notice.
On Friday, the High Court ruled that the DCJ will not be prosecuted over corruption and abuse of office charges on grounds that the evidence presented was obtained illegally.
Justices Hellen Omondi, William Musyoka, Mumbi Ngugi, Chacha Mwita and Francis Tuiyot said the charge of obtaining money by false pretences, which formed the bedrock of the case, could not, therefore, be sustained.
They said the Directorate of Criminal Investigations violated Mwilu's right to privacy by obtaining and using a court order that had no bearing on the case to look into her accounts at the collapsed Imperial Bank Limited (IBL).
“The conduct of the DCI has irredeemably rocked the foundation on which the charges stand,” they said.
Mwilu moved to the court in August last year and obtained orders stopping her prosecution. She claimed the office of the DPP and the DCI were being used to achieve a purpose unconnected with the rule of law. She also claimed the criminal justice system was being invoked and used to settle scores and to embarrass, humiliate and instigate her removal from office as a Supreme Court judge and, more importantly, as Deputy Chief Justice.
The commencement of her prosecution, according to the five judges, was against the backdrop of a public utterance by the head of state that his administration would 'revisit of the Judiciary’ after Mwilu and three other Supreme Court judges nullified the presidential election held on August 8, 2017.
Justice Chacha Mwita said the President's utterances could be taken out of context by government and political actors, depending on what they intended to achieve.
“Of course, it's not in our place to second-guess what the President meant by ‘revisit’. We cannot know whether the revisit was merely a statement made at the heat of the moment later to be forgotten,” he said.
(Edited by F'Orieny)
