Five High Court judges will determine the fate of Deputy Chief Justice Philomena Mwilu in a corruption and abuse of office case she faces.
Chief Justice David Maraga has appointed a five-judge bench comprising Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita to hear the case filed by Director of Public Prosecutions Noordin Haji.
The bench will also decide whether sitting judges should be charged for criminal acts committed outside their duties or whether judges are immune from prosecution while serving.
Justice Omondi sits in Eldoret while Justice Mumbi at the High Court in Kericho.
Justice Tuiyott is a commercial court judge while Justice Musyoka, who was hearing family court cases in Milimani, now is in Kakamega.
Justice Mwita sits in Milimani Court as a Constitutional Division Court judge and had touched on Justice Mwilu’s file by issuing temporary orders that she should not be charged until her case is heard and determined.
In her case, Justice Mwilu argues that the DPP’s charges stemmed from a purely commercial transaction that should not mutate to a criminal charge.
She filed her case before the Constitutional Division of the High Court, arguing that her rights were at stake. Judge Mwita said Mwilu’s case had raised important questions that required more than one judge to interpret.
He said the case touched on the independence of the Judiciary and that no sitting judge had been arrested or charged before a criminal court after the Constitution was promulgated in 2010.
Material bearing
“Although the present case can be heard by a single judge, the issues that are to be determined would have a material bearing on the independence of the Judiciary,” ruled Justice Mwita.
Lawyers from Haji’s office, Attorney General Paul Kihara and the senior judges will on Monday set the ball rolling for the historic battle, with arguments as to what should happen.
“Kindly take notice that this five judge bench petition is coming for a mention before the full bench on November 5. Take note that you will be required to supply the court with four sets of pleadings, documents filed in court on the material day to facilitate construction of the files,” a directive by Milimani Law Court Deputy Registrar L Mumassabba read.
The DPP says there is nothing special about Justice Mwilu to warrant him to keep off her.
“The article leaves no doubt as to the DPP’s powers to institute proceedings against the petitioner (Justice Mwilu) and the interested party (Stanley Muluvi),” read the submissions filed yesterday by Senior Principal Prosecution counsel Lilian Ogwora.
In his arguments, the DPP says the High Court had already – last year – declared that he has the powers to initiate criminal cases against judicial officers. The question of judicial immunity does not therefore arise, he says.
And even if it arose, he says, it would not extend to acts that are criminal and committed outside the official duty of a judicial officer.
“Judicial officers, like any other person, are subject to the penal laws of the country and must be held to account where they fall afoul. Judges are not special beings who are immune to criminal prosecution,” Haji’s submissions read.
Attorney General Paul Kihara has also asked the court to allow Mwilu’s criminal case to proceed
