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New chapter begins in high-drama tenure of Supreme Court

By Wainaina Wambu | August 29th 2018
Supreme Court judges Njoki Ndung'u (left), Smokin Wanjala (centre), Deputy Chief Justice Philemona Mwilu, Chief justice David Maraga, Jackton Ojwang and Isaac Lenaola during the reading of the verdict that lead to the upholding of President Uhuru Kenyatta’s victory. [Beverlyne Musili/Standard]

The Supreme Court under Chief Justice David Maraga has been involved in unprecedented high-stake drama that has cast the entire Judiciary in the spotlight.

Last year, the seven-member bench became the first African court to overturn the results of a presidential election and send the electorate back to the ballot.

And yesterday’s arrest of Deputy Chief Justice Philomena Mwilu to face criminal charges added to the intrigues increasingly characterising the goings-on in the corridors of justice.

The nullification of President Uhuru Kenyatta’s August 8 victory split the bench. Justices Maraga, Mwilu, Isaac Lenaola and Smokin Wanjala authored the majority decision while justices Njoki Ndung’u and Jackton Ojwang wrote dissenting judgements.

Justice Mohamed Ibrahim was absent.

The judgement drew the wrath of the President, who infamously warned that he would “revisit” the judges’ decision.

Yesterday, Director of Public Prosecutions Noordin Haji said Ms Mwilu’s arrest had nothing to do with the President’s comments last year.

On the surface, the Deputy Chief Justice’s seat appears jinxed — Mwilu’s two predecessors vacated the office after episodes of high drama and disgrace.

In 2012, former Deputy Chief Justice Nancy Baraza, who served under Chief Justice Willy Mutunga, quit over misconduct after she was accused by a security guard of assault.

Kalpana Rawal, who Mwilu succeeded, left in a cloud of controversy surrounding retirement age after she turned 70 years.

Ms Rawal would also be named in the ‘Panama Papers’, which linked her relatives to money hidden in tax havens.

Judges Ojwang and Ndung’u protested the Judicial Service Commission’s decision to retire Rawal and Justice Philip Tunoi.

Mr Tunoi was also hauled before a tribunal investigating claims that he had received Sh200 million to influence the outcome of an election petition filed against then Nairobi Governor Evans Kidero by then loser Ferdinand Waititu (now Kiambu governor).

Tunoi was controversially retired by his Supreme Court colleagues; the tribunal was disbanded after he left.

A day to last year’s October 26 repeat presidential election, and with the nation holding its breath ahead of an application seeking to bar the poll, Mr Maraga turned up in the courtroom alone to hear the applicant’s case.

The CJ cited a lack of quorum as most of the judges were away.

The previous night, Mwilu’s vehicle had been shot at by an unknown gunman and her driver injured. Mwilu was not in the vehicle during the 4.30pm incident; neither was she in court for the application hearing.

Justice Mohamed Ibrahim had been taken ill, Ndung’u was out of town, and Ojwang and Wanjala were not able to attend the court session.

Mwilu yesterday appeared in a magistrate’s court in Nairobi and was released on a personal bond of Sh5 million pending charging today.

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