Deputy Chief Justice Philomena Mwilu has received reprieve after a five-judge bench quashed prosecution against her. The Deputy Chief Justice, who was arrested on August 28th last year at the premises of the Supreme Court and presented to court over graft charges had obtained orders stopping the case after filing a case at the High Court, pending a petition. The counts she faced included abuse of office, obtaining the execution of security by false pretence, failure to pay taxes among others.
The decision on Friday by the judges-Hellen Omondi, Francis Tuiyot, Mumbi Ngugi, William Musyoka, Chacha Mwita-to stop prosecution against her was on the basis that the Director of Criminal Investigations (DCI) illegally obtained evidence against her by gaining access to her accounts with IBL through the use of a court order that had no bearing on her accounts, “And having found that that the DCI misinterpreted facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” said Justice Omondi.
The judges ruled that the manner the evidence was obtained was detrimental to the administration of justice. Mwilu’s lawyers who included James Orengo and Okongo Omogeni had questioned the arrest and reason behind her prosecution, and the DPP’s role in the case. However, the judges said there was no violation of the Constitution with respect to the decision to prosecute Mwilu and that there was a factual and legal basis for initiation of charges against her in respect to two counts only.
They noted that the charges were not defective due to a lack of a complainant, “The Republic through the National Police Service is a proper complainant,” said Justice Omondi. There were issues with the media coverage during her arrest and during her arraignment in court, but the judges said it didn’t interfere with the case, “The media coverage of the investigations, arrest and intended prosecution didn’t affect the petitioner’s right to a fair trial or infringe her right to dignity.”
The decision of the DPP to prosecute her was also not taken in contravention to the Constitution, and the judges pointed out that judicial immunity doesn’t shield a judicial officer from criminal proceedings. Furthermore, the judges said that while the DCI is not precluded from investigating criminal misconduct of judges there is a specific constitutional and legal framework for dealing with misconduct and removal of judges and some are to be referred to the JSC, “Cases of misconduct with a criminal element committed in the course of official judicial functions or which are so inextricably connected with the office or status of a judge shall be referred to the JSC in the first instance.”
