Director of Public Prosecutions Noordin Haji’s bid to prosecute Deputy Chief Justice Philomena Mwilu suffered yet another blow on Tuesday when the latter obtained orders suspending the hearing of a petition pending before the Judicial Service Commission (JSC).
In his filing, Mr Haji accused the DCJ of failing to enjoin them as parties in the case before the High Court, knowing “too well that the orders sought in her application were to affect the applicant directly”.
The DPP said the matter in her petition cannot be effectively resolved unless he is enjoined party to it, prompting the commission to form a committee towards Justice Mwilu’s objection to the DPP’s petition.
But she rushed to court, citing bias from two commissioners — an application that had been dismissed earlier by the JSC.
Through the secretary of public prosecutions, Ms Dorcas Oduor, the DPP said it has never been the intention of Justice Mwilu to conclude the case and the latest application is meant to further delay the proceedings.
The charges against the DCJ were quashed by a bench of five legislators but Mr Haji filed an appeal, and a complaint before the JSC. Meanwhile, the case at the Appellate court was put on hold to allow the JSC hear the petition. The Bench, comprising Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita, ruled that an order used by the DCI to investigate her accounts had no bearing on the case.
“Having found, however, that the DCI illegally obtained evidence against (Justice Mwilu) 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 the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” the Judges said.
Justice Mwilu defended her planned prosecution, stating that the allegations against her were pure commercial transactions, concluded in the normal course of the banking relationship
She said the matter has a rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI were “an abuse of power and arbitrary exercise of authority”.
The High Court judges, however, said the matter should have been referred to the JSC. The DPP issued 13 charges over transactions with a collapsed lender, while she was a judge of the Court of Appeal.