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JSC opposes case to have Justice Mwilu step aside

By Kamau Muthoni | Feb 16th 2021 | 3 min read

Deputy Chief Justice Philomena Mwilu (left) and Chief Registrar of Judiciary Anne Amadi when they visited the Lang'ata Women's Prison in 2017. [File, Standard]

The Judicial Service Commission (JSC) wants the court to throw out a case filed in Meru, seeking to have acting Chief Justice Philomena Mwilu step aside as it hears petitions against her.

In its reply to the case filed before the High Court in Meru, the Commission, through its Secretary Anne Amadi, opposed the case filed by Mwongela Mbiti, but tells the court that it needs to urgently settle four cases filed for her removal to avert a looming crisis.

Justice Mwilu is also seeking to have the case filed before Justice Patrick Otieno dismissed, citing witch-hunt. Meanwhile, JSC argues that due to her status, Kenyans will lose confidence in the Judiciary if the cases filed before different courts continue to derail its hearing.

“Due to the senior status of the first respondent within the Judiciary, there would be a crisis of loss of confidence in the Judiciary if the four petitioners before the second respondent for removal of the DCJ against the petitioner (DCJ) are not urgently dealt with,” the Commission through Amadi argued.

According to Amadi, the Commission has been willing and keen to resolve the petitions before it and against the senior judge, but its hands are tied by factors beyond its control.

Amadi cites a court order issued in favour of Mwilu last August as the reason why its hands are tied, adding that she is yet to reply to the four petitions before it.

The registrar notes that JSC appealed the order issued by Justice Weldon Korir, and at the same time filed an application before the same court seeking to suspend the orders issued to block the hearing of the petitions filed by Director of Public Prosecutions Noordin Haji, Director of Criminal Investigations George Kinoti, Mogire Mogaka and Peter Kirika.

“The first respondent (DCJ) has yet to utilise the opportunity by the JSC to be heard on merits of the case, since she has not filed a response to any of the four petitions for her removal before the JSC,” says Amadi.

The Commission also argues that it is not within its powers to either suspend or order a judge to step aside, adding that upon hearing a petition and forwarding its recommendation to the President, the decision on whether to suspend the judge lies with him.

“To this end the JSC must deal with complaints with integrity and efficacy so as to avert a crisis of loss of confidence in the Judiciary. Therefore, it is important that JSC be allowed to do its job as a constitutional commission,” she says.

In the case, Mwilu, through Lawyer Julie Soweto, accuses Mbiti of being part of a well-calculated scheme by her detractors to kick her out of the Judiciary using any means, and hiding material facts that misled the judge into issuing the orders.

“He knew there are similar petitions pending before a three-judge bench in Nairobi, but chose to go to Meru in a well-orchestrated plan to defeat justice. His actions were intended to embarrass other judges handling similar matters,” said Soweto.

Mbiti was challenging Mwilu’s suitability to hold office and claimed that she should step aside until two disciplinary cases filed against her at the JSC by the Director of Public Prosecutions and Director of Criminal Investigations are concluded.

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