Deputy Chief Justice Philomena Mwilu was yesterday arrested over corruption claims.
The DCJ was brought before the Anti-Corruption Court under heavy security a few minutes before 5pm. But when Chief Magistrate Lawrence Mugambi walked in at 5.10pm, it was too late to continue with the proceedings.
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The DCJ, however, did not take plea after a long day with investigators.
“I do not understand why the State decided to bring the accused past the normal working hours. And even if the court was to proceed, it will be like going against the right to a fair trial, as there will be no open office to process bail if granted,” said Mr Mugambi.
He granted Justice Mwilu and her co-accused, lawyer Stanley Muluvi, a personal bond of Sh5 million each and directed that they appear before him today at 9am when they are scheduled to be formally charged.
Prosecutors have accused the DCJ of abuse of office, accepting money in the form of a gift, failure to pay taxes, and obtaining by false pretext security belonging to Imperial Bank – which was placed under receivership.
However, Justice Mwilu’s team of 18 lawyers, led by senior counsels James Orengo, Okongo Omogeni and John Khmainwa, told the court they planned to object to the charges.
According to Mr Orengo, the proposed charges are defective and cannot meet the threshold of a criminal case against the DCJ.
He also submitted that they would object to Justice Mwilu being tried by a magistrate, “which is way below the hierarchy of the Judiciary”.
“We are notifying the court that we will object to the charges being read and will not allow our client to plead to them. The intended prosecution does not only raise a question on the jurisdiction of a magistrate to try a deputy CJ but also the constitutionality of the charges,” said Orengo.
Away from the glamour of her office and round-the-clock security, the DCJ appeared lost in an unfamiliar territory, as she faced a judicial officer way below her rank.
Unlike daily practice, where she enjoys the comfort of state-of-the-art office seats and attention of lawyers, Justice Mwilu sat like an ordinary citizen in the court benches and waited for the magistrate to issue directions.
She had been picked up from her office in the Supreme Court building and ushered into a Directorate of Criminal Investigations (DCI) car by her own security detail at 1.47pm.
The DCI boss George Kinoti was to her left as she walked to the car, capping a dramatic day that saw Director of Public Prosecutions Noordin Haji first meet Chief Justice David Maraga in his office at the courts.
One of Mwilu’s guards opened the door to a Subaru for her to get in and walked back to the entrance to watch her whisked away.
The DCJ, who was clad in a grey trouser suit, was driven in a motorcade of four cars – two Subarus, a Mercedes Benz that Mr Kinoti rode in, and a Volkswagen.
The day’s events had started at 7am when Judicial Service Commission (JSC) members met for close to two hours at the Supreme Court building.
Mr Haji later drove in and went into Maraga’s office at 8.40am for a private meeting that lasted close to one-and-a-half hours. He drove out at 10.07am.
The DPP later confirmed in a Press statement that he had gone to inform the CJ of his decision to charge Justice Mwilu.
A source privy to the JSC meeting said the commissioners were agonising on how the issue would be handled, with the view being held that judges’ indiscipline ought to pass through the commission and not the criminal justice system.
“Noordin aliingia saa mbili na forty na JSC pia walikuwa hapa (Noordin came in at 8.40am and the JSC was here too),” said a staff in Mwilu’s office, who sought anonymity.
The staff added: “Tumekuwa na watu wa CID kutoka jana, lakini walikuwa wanapitia gate ya KICC (CID officers have been here since yesterday, but they were using the KICC gate).”
The employee said Justice Mwilu had disregarded advice to keep away from the office to avoid getting arrested.
Noordin would later return to the Supreme Court building using the same gate next to Jogoo House at 1pm. This time he was with Kinoti.
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They rode in one car, a sleek BMW 7 Series.
As it would later emerge, the two had gone to arrest the second most powerful person in the Judiciary.
The DPP later said that it was a hard decision to conclude that Justice Mwilu must answer to criminal charges.
“This afternoon, I informed Chief Justice David Maraga of my decision to grant consent for arrest and prosecution of the DCJ Lady Justice Philomena Mbete Mwilu. This decision has not been taken lightly but it’s the right decision under the law,” said Noordin.
He added: “Investigating and punishing wrongdoing is difficult and painful, but it has to be done. We did this (inform Maraga) out of respect, and she is also our boss.”
Noordin exuded confidence that there was a watertight case against the Judiciary’s second-in-command, saying he had enough evidence to secure a conviction.
According to Noordin, the crimes the DCJ was accused of committing happened over time – from when she was a Court of Appeal judge – and continued even when she took over from former DCJ Kalpana Rawal.
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“I have concluded that the evidence is sufficient with a reasonable prospect of conviction, and it is in public interest that criminal proceedings should be preferred. There can be no justice if lawyers, prosecutors, magistrates, judges and investigators, who are court officials, use their positions to enrich themselves at the expense of Kenyans,” he said.
Noordin said the country was bleeding from graft, which has run riot in Government agencies. The DPP said companies had failed and many workers lost jobs because of a few people who had been selfishly raiding State coffers.
He, however, denied that the decision to charge Justice Mwilu was retribution for the Supreme Court’s nullification of President Uhuru Kenyatta’s victory last year.
An irate President Kenyatta had at the time lampooned the Supreme Court judges as wakora (thugs) and warned that his Government would revisit that decision after his re-election. “We are an independent institution and there is no influence,” Noordin said yesterday.