Why DCI, DPP wanted to prosecute DCJ Philomena Mwilu

On August 28 2018, Chief Justice David Maraga received two special guests in his office at the Supreme Court building over a sensitive issue.

Director of Public Prosecution Noordin Haji and Director of Criminal Investigations George Kinoti had been to the CJ’s office many times as key players in the administration of justice but on this occasion their mood, tone and urgency suggested it was not a normal visit.

They wanted Maraga’s deputy, Lady Justice Philomena Mwilu (pictured) over abuse of office. What followed was deep shock within the Judiciary as the DCJ was hurriedly taken to DCI Headquarters along Kiambu Road under tight security to record a statement before being hauled to an anti-corruption court in Milimani to face the charges.

Justice Mwilu’s lawyers appeared well prepared with a two-pronged attack, one at the High Court and another at the magistrate’s court and through witty arguments managed to save the DCJ from pleading to 10 charges of abuse of office, failing to pay taxes and forgery.

Senior counsels James Orengo, Okongo Omogeni and Dr John Khaminwa led the team of 35 lawyers which also included Wiper Party leader Kalonzo Musyoka while arguing that the intended prosecution was politically contrived. “It is purely to secure the removal of Justice Mwilu from office and has nothing to do with fighting corruption. The charges are a collateral attack on the entire Judiciary and we cannot allow the court to continue,” said Orengo.

Taxes and forgery

In the proposed charge sheet, Justice Mwilu was to face charges alongside lawyer Stanley Muluyi of abuse of office, failing to pay taxes and forgery involving Sh80.7 million. The prosecution claimed she used her office while serving as a Court of Appeal Judge in 2013 to obtain Sh12 million from Imperial Bank of Kenya and conspiring with Muluyi to execute a discharge for two parcels of land being securities for a loan of Sh60 million.

The two were further accused of forging KRA stamp duty purporting that they had paid Sh3.6 million to KRA.

Police investigator Abdallah Komesha in his affidavit to justify why they charged the DCJ stated that Mwilu irregularly used her position to get loans from Imperial Bank and acquired several prime properties which she later sold but failed to pay tax totalling Sh12.4 million.

Mr Komesha swore that on August 15 and 30 2013, Justice Mwilu wrote a handwritten letter on the official Judiciary letterhead to then Imperial Bank Managing Director Jan Mohammed requesting for unsecured loan of Sh12 million.