Two petition Mwilu's removal from office for 'misconduct'

One says her continued participation in matters of the Judiciary is a mockery to the Constitution

In Summary

• Petitioners want JSC to use the same spirit it used in removal of Mwilu's predecessor Nancy Baraza, 'whose actions pale in comparison to Mwilu's'. 

• High Court quashed her prosecution on grounds the DCI violated her privacy by obtaining her IBL records for evidence. 

Justice Philomena Mwilu during her swearing-in as Deputy Chief Justice at State House in Nairobi, October 28, 2016. /PSCU
Justice Philomena Mwilu during her swearing-in as Deputy Chief Justice at State House in Nairobi, October 28, 2016. /PSCU

Two petitions have been filed before the Judicial Service Commission seeking the removal of Deputy Chief Justice Philomena Mwilu from office.

Alexander Mugane and Peter Kirika claim their petitions disclose sufficient grounds for Mwilu's removal and want the commission to send it to President Uhuru Kenyatta for further action.

On May 31, the High Court quashed the criminal case facing the DCJ on grounds the Directorate of Criminal Investigations violated her right to privacy by accessing her IBL accounts for evidence.

The court also found that the decision of the DPP to prosecute was informed on a legal basis but the conduct of the DCI irredeemably rocked the foundation on which the charges stood.

The charges levelled against the DCJ are related 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 faced charges of abuse of office, unlawful failure to pay taxes to KRA and forgery.

Mugane says the finding that the foundation of the charges was factually and legally sound is a serious indictment against the integrity of the DCJ.

He says her continued participation in the affairs and deliberations of the JSC and Supreme Court are a total mockery of the Constitution. He terms them 'flawed' on grounds that the judicial code of conduct and ethics require a judge to ensure their conduct is above reproach.

Mugane says if the Judiciary is to begin restoring any confidence in the public, the commission should take decisive action by suspending Mwilu from her deliberations and those of the Supreme Court and to recommend the appointment of a tribunal to probe her conduct.

The petitioner cites the 2003 Judiciary radical surgery which implicated five out of nine Court of Appeal justices, 18 out of 36 High Court judges and 82 out of 254 magistrates as corrupt.

He also mentions the removal of former DCJ Nancy Baraza from office over misconduct which he has asked the court to consider. The petition by Kirika raises similar issues.

Kirika says the High Court observed that the DPP had demonstrated that the circumstances under which Mwilu obtained the loan from IBL were unusual thereby justifying the charge of abuse of office.

“Going by the facts evidenced in the decision of the High Court, my complaint is that the conduct of the judge as evidenced rises to the level of gross misconduct and in breach of the judicial code of conduct,” he says. 

Kirika says the commission (differently constituted) has previously seen to the removal from office of an errant deputy chief justice –Nancy Baraza- whose misdeeds pale in comparison to Mwilu’s.

He wants the commission to act in the same spirit as it did back then to safeguard the rule of law, the Constitution of Kenya, the Judiciary, the Supreme Court and ultimately, the people of Kenya. 

Edited by R.Wamochie