• Justice Antony Mrima ruled that the application by Omtatah was premature and should be heard in full before the court makes a determination.
• Omtatah had argued that Mwilu cannot hold the office of the CJ in view of the pending petitions for her removal from office filed at the JSC.
Acting Chief Justice Philomena Mwilu will continue holding fort as the head of the Judiciary until a replacement for David Maraga is found.
The High Court on Tuesday dismissed an application by activist Okiya Omtatah to stop Mwilu from acting as the CJ.
Maraga handed over to Mwilu on Monday and she will perform functions of the Chief Justice until the Judicial Service Commission fills the vacancy.
Justice Antony Mrima ruled that the application by Omtatah was premature and should be heard in full before the court makes a determination.
Omtatah had argued that Mwilu cannot hold the office of the CJ in view of the pending petitions for her removal from office filed at the JSC.
“Whereas on one hand Omatatah fronts the position that Mwilu ought not to act in the position since her integrity has been impugned, on the other hand, Mwilu contends that no adverse determination on her suitability to serve has ever been made,” the judge said.
The judge said that Mwilu should be presumed innocent unless otherwise so it would be unfair to grant orders at this stage.
“At the moment given the pendency of the various court cases this court finds it rather difficult to comprehend how the petitioner may aver to have established a case against DCJ from acting as the CJ,” the court ruled.
Justice Mrima directed that the matter be mentioned on February 17.
In his case, Omtatah wants Mwilu to wait until the JSC clears her of allegations of corruption and abuse of office levelled against her.
He has asked the court to suspend a December 11 letter by CJ Maraga appointing Mwilu to act as Chief Justice until the position is filled.
However, in response, Mwilu argued the complaints of corruption and abuse of office pending before the JSC cannot stop her from performing the tasks of Acting Chief Justice.
She said that a judge's personal integrity does not diminish or end nor does the judge cease being suitable to serve on account of pending complaints for removal.
“Complaints against Judges are received by the JSC all the time and the mere existence of any such complaints does not bar Judges from discharging their constitutional judicial functions. My case cannot be any different,” she said.
JSC told the court that it does not appoint an Acting Chief Justice and cannot, therefore, be prohibited from undertaking a function not given to it in the manner contemplated by Omtatah.
Four petitions seeking the removal of Mwilu from office are currently pending before the JSC.
Some were filed in 2018 after but have never proceeded. And in September last year, the High Court issued orders suspending hearing of the petitions, after Mwilu claimed that some of the commissioners were biased.