Why Mwilu could be knocked out in Maraga succession

Mwilu barred from discharging duties as Judge and as acting CJ

In Summary

•Mwilu has been serving as chairman of JSC

•Previously, she has alleged executive hand to kick her out of the bench

Acting CJ Philomena Mwilu when she spoke at Chief Justice David Maraga's farewell ceremony at the Supreme Court on January 11, 2021.
Acting CJ Philomena Mwilu when she spoke at Chief Justice David Maraga's farewell ceremony at the Supreme Court on January 11, 2021.

Acting Chief Justice Philomena Mbete Mwilu has been dealt a staggering blow in a landmark ruling that could potentially knock her out from the David Maraga succession battle.

In a single ruling, the High Court made four decisions against Mwilu, effectively suspending her as Deputy Chief Justice, Judge of the Supreme Court, a member of the Judicial Service Commission and Ombudsman of the Judiciary.

This also means that Mwilu will cease to act as CJ and chairperson of the JSC, twin powerful roles she took over following Maraga’s retirement a fortnight ago.

“A conservatory order be and hereby issued against the 1st respondent [Mwilu] restraining her continued occupation of the Deputy Chief Justice of the Republic of Kenya, Judge of the Supreme Court of Kenya, member of Judicial Service Commission and ombudsman of the Judiciary pending the hearing and determination of the Application,” Justice Patrick Jeremy Otieno ruled on Friday.

The decision to bar the DCJ from sitting in the JSC stops her from participating in the process of selecting the next CJ to succeed Maraga, which is expected to begin after applications close on February 10.

Sources said Supreme Court Judge Mohamed Ibrahim who is the senior most Judge at the apex court is tipped to take over as the new acting CJ.

Mwilu who has been acting as President of the Supreme Court was seen to be in pole position to succeed Maraga.

The conservatory order issued in Meru was made following an application by one Isaiah Mbiti who cited four abuse of office charges pending against Mwilu at the JSC.

In court, Mbiti argued that Mwilu’s continued performance of any constitutional duties while facing graft allegation reeks of favoritism and offends the tenure, ideals and spirit of Chapter Six of the Constitution.

“She ought not to then enjoy preferential treatment because she is a Judge. The standard applicable to Mwilu in as far as Chapter Six of the Constitution is concerned is the standard applicable to all Kenyans. To this end, Chapter Six of the Constitution considers integrity beyond the extra-legal context into the realms of public perception, respect and honour,” he stated

He termed absurd, Mwilu’s continued stay as a member of the JSC, hearing and determining complaints against other Judges when she also has pending petitions against her.

“Similarly, it is unethical, absurd and drudgery to Chapter Six of the Constitution for Mwilu to continue sitting as the Judiciary’s ombudsman in light of the complaint against her pending before the JSC,” he stated

His lawyer,  Marius Maranya made reference to Justice Mumbi Ngungi’s ruling that has compelled governors facing graft prosecution to step aside from office.

“The institution of the Judiciary cannot be seen to apply different standards of integrity for judicial officers such as the 1st Respondent [Mwilu],” they argued.

“The standard of moral and ethical probity required of Mwilu is that required of a constitutional office holder in respect of whom a criminal prosecution has been commenced. This standard requires that a constitutional office holder the subject of a criminal prosecution is either suspended or steps aside and does not discharge the function of the constitution office until the criminal prosecution is concluded,” they added

Mwilu has four pending petitions against her at the JSC, including one filed by the DPP and the DCI.

In 2018, DPP Noordin Haji moved to court to charge Mwilu for abuse of office, obtaining security by false pretense, failure to pay tax and forgery.

However,  a five-judge bench terminated her prosecution saying charging her with abuse of office and forgery counts violated judicial independence, and that evidence in another five counts had been illegally obtained.

It was after the court battle that the case was referred to the JSC.

However there have been many intrigues at the JSC with Mwilu alleging that the executive was determined to kick her out because of her role in the nullification of President Uhuru Kenyatta’s election in 2017.

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.

Remaining JSC members who will recruit the country’s next CJ include  judges Mohammed Warsame and David Majanja, Attorney General Paul Kihara, Prof Olive Mugenda, Macharia Njeru, Felix Kiptarus and Everlyn Olwande

LSK is yet to elect a new representative replace Mercy Deche.

The JSC will also recruit two Supreme Court Judges to replace Jackton Ojwang and Philip Tunoi who have since retired from the seven-member bench.