The decision by the State to introduce a Queen’s Counsel to lead the case against Deputy Chief Justice Philomena Mwilu prompted a stand-off that paralysed the hearing.
Whereas Justice Mwilu’s lawyers insisted that Khawar Qureshi QC had no valid practising certificate and could not be allowed to address the court, the Director of Public Prosecutions’ team insisted it would not proceed without him.
And as a pointer to the hard-line positions that have surrounded the matter, the prosecution, too, insisted it would push for the disqualification of two senators who are representing Mwilu, citing conflict of interest as they sat in a Senate committee that received privileged information on the case.
What started as a simple introduction of Prof Qureshi before the court turned out to be a dead end as he eventually left without showcasing his ability to prosecute the case.
The tough exchanges and hard-line stance taken by both sides continued to unveil the intrigues surrounding the case against the DCJ from the first day DPP Noordin Haji sought permission of Chief Justice David Maraga to arrest and prosecute Justice Mwilu.
Before answering the corruption charges, she filed a petition at the High Court, claiming the accusations were illegal since they were framed ostensibly to remove her from office over the decision to nullify the results of the August 8, 2017, presidential election.
For over one hour, Qureshi was treated to a show of the grit and agility of Mwilu’s lawyers, who opposed his presence, sparking the stand-off and counter-accusations from the DPP’s team, who also applied to have two senators ejected from the case.
Led by senior counsels James Orengo, Okong'o Omogeni and John Khaminwa, the DCJ’s team argued that even Kenyan lawyers were not allowed to practise if they did not have a valid licence, in accordance with the Advocates Act.
“What is good for the goose is also good for the gander; they don’t make it easy for us when we appear before their courts in Britain and we must also make it difficult for him to appear in our courts when he has no valid certificates,” said Mr Orengo.
He told the court that even the former solicitor general was sent packing by a British court when he appeared to argue a case on behalf of the Kenyan Government for lack of a practising licence and that it should not be made easy for Qureshi.
Orengo submitted that the DPP could not appoint Qureshi to lead the case under the Criminal Procedure Code and also allow him to lead the constitutional petition in which Justice Mwilu is challenging her prosecution.
“The law allows the DPP to appoint a special prosecutor in a criminal case, but to the extent that the Gazette notice refers to this petition then it is a nullity. Prof Qureshi cannot participate in these proceedings until the DPP puts his house in order,” said Orengo.
His submission jolted State prosecutors Dorcas Oduor and Alexander Muteti, who stood their ground that they would not proceed with the case unless Qureshi was permitted to lead the DPP’s case.
According to Ms Oduor, Orengo and Prof Omogeni are members of Senate Legal Committee, which has an oversight role over the DPP and the Attorney General and have confidential information relating to the case and Qureshi’s appointment which came to their knowledge.
“We will be seeking an interpretation on how the law of privileges should be applied because the two senators cannot sit in a committee that grilled the DPP over Prof Qureshi’s appointment and come to court the next day seeking to quash his appointment,” said Oduor.
According to her, the DPP has the right to appoint any advocate of his choice to lead his cases and wondered why the lawyers were objecting.
She submitted that it was disappointing that Mwilu’s lawyers had seen it fit to come up with misconceived objections to the appearance of an independent Queen's Counsel, who is also a deputy judge of the High Court of England and Wales.
To support Qureshi’s appointment, Oduor presented in court documents showing that he was admitted as an advocate of the High Court by Attorney General Kihara Kariuki and given a certificate of good standing. He had a receipt after paying the admission fee.
Judges Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita, however, allowed the application by Justice Mwilu’s team to file a formal application to bar Qureshi from the case within 14 days.
They also gave the DPP two weeks to file his case against Orengo and Omogeni before each party responded to the claims within another 14 days. They scheduled the hearing for January 17, 2019.
When he appeared before a Senate committee on Wednesday, Mr Haji defended his appointment of Qureshi, saying most lawyers were not willing to take up the matter.
“He is not coming here to handle all the corruption cases. He is coming for a particular case, and that is the case of DCJ which is a case of great public interest, you will all agree,” Haji said.
He added: “I would have loved to have Senator Orengo to hold brief for the ODPP, but as you all know a lot of Senior Counsel were not comfortable handling the DCJ case and it is not only them, because it is a very sensitive matter.”
The DPP said he needed an independent person who could address the issues that were before the High Court.