Succession intrigues rock Judiciary as Maraga exits

A silent but stormy battle for the control of the Supreme Court has erupted as Chief Justice David Maraga leaves office on Friday.

Deputy Chief Justice Philomena Mwilu is tipped to become acting CJ.

But hours before Mwilu would make history as the country's first acting chief justice, activist Okiya Omtatah dashed to court seeking orders to block her from assuming the office.

Omtatah wants the court to bar the Judicial Service Commission from appointing Mwilu to act in the powerful office unless she is cleared of all the corruption allegations against her. She denies them all.

“It is both in the public interest and in the interests of justice that the DCJ is either cleared or condemned by the JSC,” Omtatah argued in court.

It has emerged, however, that ahead of the 2022 General Election, recruitment of Maraga's successor and replacement of Jackton Ojwang as apex court judge is stirring interest from various actors.

It is almost a given that the presidential polls will spill over to the Supreme Court for final determination.

On Thursday, Law Society of Kenya president Nelson Havi told the Star the "deep state" is determined to ensure Mwilu does not succeed Maraga.

“The deep state operatives are determined to block the DCJ in the intervening period during [Maraga's] terminal leave or during the longer period from acting as CJ,” Havi said.

Mwilu was especially vocal in articulating the Supreme Court's decision to nullify the 2017 presidential election.

The LSK boss said nothing stops Mwilu from acting as CJ because she is the second top-most judge in the country, despite manoeuvres from powerful forces keen on ending her judicial career.

Mwilu has publicly accused two JSC commissioners - Attorney General Kihara Kariuki and LSK representative Macharia Njeru - of being the architects of her woes.

She said there is a scheme by her detractors to not only block her ascension but also to kick her out of the Supreme Court.

Mwilu said the AG had been arranging meetings with other commissioners to discuss how to remove her from office.

"I am aware of three such meetings separately attended by influential state operatives, who implored certain commissioners to fast-track the process of my removal from office," the DCJ claimed in court papers.

As the Judiciary's second in command, Mwilu is the most formidable frontrunner in the race to succeed Maraga who officially retires next January.

However, the battle to succeed Maraga could expand to include both insiders and outsiders.

Court of Appeal president William Ouko, Court of Appeal judges Martha Koome and Wanjiru Karanja are some of the insider judges seen as possible replacements.

Given his current position, coupled with long and rich experience serving in positions within the Judiciary, Ouko could be among the front runners. 

Koome is also an experienced hand and was among the judges who applied for the job in 2016.

Outsiders who could be salivating for the job include law professor Makau Mutua. Mutua, the first African to become dean of a law faculty in the US, is a formidable legal scholar. From 2008-2014 he headed the State University of New York School of Law in Buffalo.

He applied for the job in 2016.

At the Supreme Court, there are Justices Smokin Wanjala and Njoki Ndung'u.

Ndung'u alongside Jackton Ojwang dissented in the Supreme Court decision to nullify President Uhuru Kenyatta's reelection in 2017.

This week, in an op-ed in the Star, State House director of political affairs Machel Waikenda strongly endorsed Njoki.

"What we need is a leader like Njoki who has worked as an MP and also closely with the Executive. She knows the good and the bad of both worlds and is less likely to be swayed by emotions when leading the Judiciary," Waikenda wrote.

In the 2016 recruitment, Maraga defeated Justices Smokin Wanjala, Alnashir Visram, Roselyne Nambuye, Mbogholi Msagha and Philip Nzamba Kitonga to get the top job.

The Star has established that the JSC -  the statutory body that employs judicial officers - could only allow Mwilu to act as CJ once Maraga formerly retires on January 12.

However, LSK's Havi says once the CJ proceeds on terminal leave, there is no legal requirement compelling the JSC to write an appointment letter so that Mwilu can act as CJ.

“If the CJ was not in office to handle matters, administrative functions will be performed by the DCJ. Now that the CJ is proceeding on leave, it follows that his functions will be handled by the DCJ,” Havi said.

Even as Mwilu is tipped to step into Maraga's shoes as the top judge, a litany of cases lodged against her could threaten her bid for the ultimate prize.

In the case filed in court on Thursday, Omtatah wants the court to bar the JSC from appointing Mwilu to act in the office of the CJ unless they clear her of all corruption allegations.

Omtatah says he is aggrieved that the commission, which is mandated to ensure professionalism of judges, is deliberately delaying to determine Mwilu’s matters.

“The petitioner is aggrieved that the JSC, which is mandated to ensure the independence, impartiality, responsibility and professionalism of the courts and judges, is dillydallying and pussyfooting, and deliberately delaying to determine this matter either way,” the petition reads.

Omtatah says the case is extremely urgent because Maraga is set to go on his terminal leave and Mwilu is set to assume office in acting capacity pending the appointment of a new CJ.

The activist further argues there are currently four petitions filed at the JSC seeking to remove Mwilu from office.

“For example, the DPP and the DCI claim in their petition that Justice Mwilu is unfit for public office as she was involved in the irregular sale and acquisition of property, including obtaining the execution of a security by false pretense,” Omtatah claims.

Over and above Omtatah's case lodged on Thursday, Mwilu is in a battle with the Judicial Service Commission over the hearing of at least four petitions seeking her removal from office.

The JSC had in court papers accused Mwilu of tricking the High Court into suspending the hearing of petitions for her removal, saying that was part of the delaying tactics to slow down the process.

The JSC said Justice Weldon Korir’s order had interfered with its mandate to hear petitions for the removal of the top judge, saying it is an independent body, hence, cannot be directed how to handle its affairs.

At the same time, the JSC wants the Court of Appeal to overturn Justice Korir's September order that suspended the hearings of the four petitions after the DCJ cited bias against her.

Justice Mwilu was initially charged in the chief magistrate’s court with tax evasion, irregular recovery of loan collateral and abuse of office.

But the charges were quashed last year by the High Court, which ruled that the allegations should have been taken to the JSC.

Both Mwilu and Director of Public Prosecutions Noordin Haji filed appeals against the High Court decision.

However, when the appeals came up for hearing, Mwilu had asked that they be adjourned pending the outcome of the petitions before the JSC.

In July, Justice Mwilu protested the JSC’s decision to hear four petitions filed for her removal from office on grounds that both she and the DPP were before the Court of Appeal.

(Edited by V. Graham)