• She questioned the motive behind filing the case against her before Meru court when all the parties involved reside in Nairobi.
• Judge Otieno made four decisions against Mwilu, effectively suspending her as Deputy CJ, judge of the Supreme Court, a member of the JSC.
Image: FILE
After spending a day at home, acting Chief Justice Philomena Mwilu yesterday got a reprieve after a judge lifted an order stopping her from discharging her duties.
High Court Judge Patrick Otieno lifted his own order that barred Mwilu from discharging duties of office of chief justice for 11 days. His decision arose out of an application filed by Mwilu protesting what she termed an unfair order.
Earlier, Mwilu had said the order stopping her from work amounted to judicial terror and one given without benefit of relevant and material facts before the court.
“The drastic orders obtained ex parte are an egregious act of judicial terror and oppression obtained fraudulently and illegally through nondisclosure of relevant and material facts and are inimical to the rule of law and fair and constitutional administration of justice,” she said.
She questioned the motive behind filing the case against her before a Meru court when all the parties involved reside in Nairobi.
“The filing of this petition in a different High Court station is ex facie irregular in the light of ordinary rules as to ‘the place of suing’, considering all the parties are domiciled in Nairobi.”
Justice Mwilu believes that this new case filed in Meru by lawyer Mwongela Isaiah Mbiti from which the order arose is a collateral attack on the authority of two other court orders in different cases touching on the same issue. In one of the two cases, a similar order stopping her from acting as CJ was sought but was denied.
Justice Mwilu’s lawyer Julie Soweto said her client was condemned unheard and stripped of her freedoms, among them security of tenure in excess of the court’s jurisdiction.
“The ex parte orders given by the honourable court herein on January 29, 2021, are akin to mandatory orders of injunction with the potential of determining the petition summarily and should be granted sparingly and only in special circumstances,” the advocate said.
She also raised the issue of doctrine of sub judice, saying that when an issue is pending in court for adjudication between the same parties, any other court is barred from trying that same issue so long as the first suit goes on. In her case, there are two pending cases on the same issue.
Judge Otieno sitting in Meru on Friday made four decisions against Mwilu, effectively suspending her as Deputy Chief Justice, Judge of the Supreme Court, a member of the Judicial Service Commission (JSC) and Ombudsman of the Judiciary.
This also means 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.
The conservatory order issued in Meru followed an application by Mbiti who cited four abuse of office charges pending against her at the JSC.
Mbiti argued that Mwilu’s continued performance of any constitutional duties while facing graft allegation reeks of favouritism 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 honor,” 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.
Mwilu has four pending petitions against her at the JSC, including one filed by the Director of Public Prosecutions and the Directorate of Criminal Investigations.
In 2018, DPP Noordin Haji charged Mwilu with abuse of office, obtaining security by false pretences, 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.