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DPP tells judge to withdraw from Mwilu case

By John Muthoni | February 19th 2021

Acting Chief Justice Philomena Mwilu at a past event. [Edward Kiplimo, Standard]

A case filed by acting Chief Justice Philomena Mwilu seeking to bar Attorney General Kihara Kariuki and Law Society of Kenya (LSK) representative in the Judicial Service Commission (JSC) Macharia Njeru from sitting in a committee to hear four petitions filed for her removal has been adjourned to May.

A three-judge bench allowed the adjournment after Director of Public Prosecutions (DPP) Noordin Haji made an application to have the presiding judge Said Chitembwe withdraw from the case, citing a scheduled interview for the position of the Chief Justice.

Mr Haji, through senior DPP Alexander Muteti, argued that there was a likelihood that Justice Chitembwe would appear before the acting CJ, which in turn would lead to perception of bias.

Others on the bench are Justices Weldon Korir and Roselyn Aburili.

“Your Lordship, the presiding judge of this bench, we are aware you have been shortlisted for the position of the judge of the Supreme Court and in that regard, obviously then, you will be soon appearing before the petitioner and the first and the second respondent. We seek these directions purely to avoid the appearance at the end that justice will not have been done to any of the parties, more so the respondents,” Mr Muteti argued.

JSC lawyers Paul Muite and Peter Kanjama argued that the presence of the judge in the case, and his scheduled interview put the commission at a crossroads.

Cannot appoint a judge

“I would have looked forward to having this matter before you, it is nothing personal against you judge. But public confidence is an important tenet in the administration of justice. It would be inappropriate, given the circumstances for your Lordship to be part of the bench,” Mr Muite said.

At the same time, senior lawyer Taib Ali Taib, for Director of Criminal Investigations (DCI) George Kinoti in the case, submitted that the application raised on Justice Chitembwe was weighty.

DPP, JSC, and DCI proposed that since the acting CJ could not appoint a judge to hear her own case, the principal judge of the High Court Lydiah Achode should second a replacement for Chitembwe. “We pray that the Principal judge is the one to second the judge to deal with the matter considering the circumstances. Unfortunately, the notice was published yesterday morning and the JSC has found itself in a difficult position not to appear as conflicted. JSC is desirous to have the matter heard urgently,” argued Mr Kanjama.

But Justice Mwilu’s lawyers Okong’o Omogeni, James Orengo, Nelson Havi, Julie Soweto, Jackson Awele and Mutula Kilonzo Jnr opposed the application, saying the DPP, JSC, and DCI were plotting to corner her to appear before JSC.

“To call for recusal of a judge is a weighty matter, and this is a matter of public notoriety, and this is in the public domain that if you decide to recuse yourself, it is not a matter of you alone, the public must be made to understand, and that can only be made through a formal application. The fact that the presiding judge is shortlisted for interviews for Chief Justice, that alone is not a reason,” Mr Orengo argued.

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