The Director of Public Prosecutions has challenged a court order stopping disciplinary proceedings against Deputy Chief Justice Philomena Mwilu.
The order was issued by Justice Weldon Korir on August 17, after an application by the DCJ. It stops the Judicial Service Commission from conducting disciplinary proceedings against Mwilu, who is a member of the JSC.
The DPP has charged her with fraud, bribery, abuse of office and related charges, all of which she denies.
In an application filed under a certificate of urgency, DPP Noordin Haji accuses Justice Mwilu of using different means to delay the criminal case against her.
The DPP's office said: “…If at all she had any misgivings about JSC’s capacity to do justice, nothing would have been easier than for her [as a member] to halt the process before the JSC and allow the appeals to proceed, if at all in her view that is the forum [where] she would have secured justice.”
Mwilu had opposed the JSC hearing, saying two of the commissioners - Attorney General Kihara Kariuki and Macharia Njeru - are biased against her. The JSC dismissed the bias claims, so she moved to the High Court, which blocked the JSC hearings.
The state says that because she initially chose to have the matter considered by the JSC, she cannot be allowed to abandon the process before the commission - or worse still, sneak to the court and obtain an ex parte order without the courtesy of enjoining the DPP as a party.
The court was further told the challenge by Mwilu is an afterthought and an act calculated to convolute the matter.
“The petitioner/respondent [Mwilu] therefore has been indolent and cannot therefore be assisted by this court for equity does not assist the indolent but those that are vigilant in their quest for justice.”
The DPP says that Justice Mwilu failed to enjoin him, despite knowing his office is a necessary party with sufficient legal interest in the suit.
The state accuses her of failing to disclose material particulars to the court, which would have enabled it to arrive at a different decision.
“…She is guilty of misrepresentation of facts and must therefore not be allowed to drink from the pure waters of equity,” the suit papers filed by DPP read.
The DPP says Mwilu failed to disclose the fact that on August 31 the Judicial Service Commission was scheduled to hear her preliminary objection to a case filed by the state.
A five-judge bench had held that if indeed the DPP wanted to pursue Mwilu for the allegations giving rise to the criminal case, he should first file a case before the JSC before filing a criminal case.
And in compliance with that order, the DPP filed petition before the JSC. The DPP also filed an appeal.
The state says pursuing the petition before the JSC will deal with the disciplinary aspect and not the criminal justice process, thus the two cases can run concurrently.
The appeal was stopped, awaiting the determination of the proceedings before the JSC.
The continued delay in the proceedings against the DCJ reflects negatively on the image of the Judiciary as a whole because by virtue of her position she continues to sit in the JSC proceedings.
Thus, she hears and determines disciplinary cases against other judges while her own case remains in abeyance.
(Edited by V. Graham)