Deputy Chief Justice Philomena Mwilu yesterday narrowly escaped a criminal trial after the High Court fingered Directorate of Criminal Investigations (DCI) for illegally obtaining evidence they intended to use against her.
The five judge bench comprising of Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, Chacha Mwita and William Musyoka dismissed everything Justice Mwilu had raised in opposing her prosecution.
However, the judges relied on constitutional provisions on privacy to dismiss the prosecution’s evidence. Mwilu’s application had not raised violation of privacy.
In a unanimous decision the judges found that the DCI boss George Kinoti had obtained orders from the magistrate’s court to investigate a Kenya Commercial Bank account operated by manufacturing equipment dealer Blue Nile East Africa.
It is these orders that DCI relied on to gather evidence against the judge.
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The judges declared that probing the DCJ’s accounts and transactions with Imperial Bank was a breach of her privacy.
“We have held the manner in which DCI obtained the evidence was illegal in a manner which is detrimental to her right to privacy although it was not pleaded by the petitioner,” the judges ruled.
Set five issues
DPP’s lieutenants led by Senior Assistant DPP Dorcas Oduor and Alexander Muteti sat on the right while the judge’s battery of lawyers led by Siaya Senator James Orengo, his Nyamira counterpart Okong’o Omogeni and law professor Ben Sihanya sat on the left.
Mr Orengo introduced all the lawyers on the basis of their seniority and while signing off the long search for justice remarked: “We have left it to the court.’’
When the scales of justice tilted towards the DPP’s side, Senator Orengo closed eyes his eyes and clasped his hands while Omogeni touched his mustache.
This was the rhythm most of the time for Justice Mwilu’s key generals when they were not exchanging notes on what the judges were saying.
Oduor and Muteti on the other hand were busy writing notes.
It is Justice Musyoka who handed the dampening declaration to the DPP’s generals. At this point, the senior assistant DPP stopped writing, turned to Orengo who was still rubbing his thumb and mumbled something.
He unclasped his right hand and flipped it thrice, as if indicating to her that it could go either way. When Justice Musyoka ended his part, Muteti passed his note book to a colleague and pointed at something he had written.
The judges set five issues for determination; whether there was a factual or legal foundation for the charges, whether due process was followed while investigating, whether the DCI encroached the role of EACC, whether DPP prosecuted Mwilu through the media and whether JSC ought to have taken up the matter.
They observed that the court could not delve into whether the evidence by the State would either lead to an acquittal or a conviction, but would look at the rationality of the decision by the DPP.
According to the court, the DPP could not be faulted as he first followed government’s protocol by seeking Chief Justice David Maraga’s consent to charge his deputy. In addition, they found that the DCJ was given a chance to tell investigators her side of the story.
However, the court opened doors for DPP Noordin Haji to pursue the DCJ matter before Judicial Service Commission by declaring that a charge of abuse of office may be pursued through her employer first.
At the same time, they exonerated Mwilu from a charge of failing to pay stamp duty by finding that her lawyer Stanley Kiima had admitted that she had given him cash to pay for the same. Kiima, an interested party in the case, was also seeking to stop charges against him.
President Uhuru Kenyatta’s ‘we shall revisit’ statement also featured in Justice Mwilu’s case. The Judges said although the President’s statement can be construed to have targeted the four judges who ruled against him, the DCJ did not prove that Kinoti and Noordin worked to actualise the threat.
“The petitioner does not show us that the events were instigated by the executive arm of the Government. We have no reason to doubt the DPP that the decision to charge her was out of influence. There is no evidence to show that it ought to reach a certain result,” they ruled.
Judges quashed lawyer Kiima’s case saying he could not ride on Mwilu’s matter as he was a third party.
