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Lawyer wants Mwilu to leave CJ applicants interview panel

By Paul Ogemba | April 10th 2021
Deputy Chief Justice Philomena Mwilu. [George Njunge, Standard]

Senior Counsel Philip Murgor wants Deputy Chief Justice Philomena Mwilu stopped from sitting in the interviewing panel in the search for a new Chief Justice to replace David Maraga.

Mwilu is a member of Judicial Service Commission (JSC) and Murgor is one of the candidates. The latter, in a letter to JSC, claims that there might be bias and favouritism towards another candidate, Senior Counsel Fred Ngatia.

Murgor claims that Ngatia had at one time represented Justice Mwilu during her vetting on suitability to be a judge in 2012 and that their relationship would present a conflict of interest.

However former JSC commissioner Tom Ojienda says the claims by Murgor are baseless since there are no conflicts where an advocate acts for a judge in any matter. Prof Ojienda said all the DCJ needs to do is raise the matter with her fellow commissioners at the JSC who will then make a decision whether there is a conflict of interest.

“There is never a conflict of interest to disqualify a commissioner from sitting in the interviews.

“Like in my case, I sat on the JSC meeting that recommended the suspension of retired Judge Philip Tunoi in a matter touching on former Governor Evans Kidero who was my client,” he said.

Some lawyers also stated that Murgor’s claims are meant to put pressure on the JSC and interfere with their independence when selecting the new CJ.

According to a lawyer who wished not to be named, it is not possible for Justice Mwilu to favour Ngatia when she dismissed his case in defence of President Uhuru Kenyatta during the 2017 presidential election petition.

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Strong case

“Ngatia had a strong case on behalf of the president in 2017 and if there was any favour then Mwilu would have agreed with him.

“But she dismissed Ngatia’s case openly in the eyes of everyone. It is an aberration of mind for Murgor to make such claims,” said the lawyer.

“Ngatia was her advocate when she appeared before the Judges and Magistrates Vetting Board and by virtue of the subsisting client and advocate relationship, she might have a lifelong debt of gratitude, which will make the DCJ favour him during the interview,” Murgor said in his letter.

Murgor also wants Mwilu to disqualify herself over Law Society of Kenya president Nelson Havi, who wrote a memorandum to the JSC opposing his candidature. According to Murgor, the LSK boss is acting for Mwilu in many cases.

Havi, in his memorandum to the JSC, raised concerns about the conduct and suitability of Murgor, Court of Appeal Judge Martha Koome and Prof Patricia Kameri-Mbote on grounds that they have questionable conduct that makes them unsuitable for the position.

But Murgor asked the JSC to expunge the memorandum and not consider it when interviewing the candidates since it was filed after the deadline for submitting the documents on suitability of candidates.

Justice Koome has also written to the JSC to expunge the document, claiming that it is only meant to disparage her name and disadvantage her against the other candidates.

“I request the memorandum by Havi to be disregarded as it is meant to besmirch my name as a hardworking, ethical and considerate judge who has devoted over 32 years to public service,” said Koome.

Other candidates are Court of Appeal President Justice William Ouko, Employment and Labour Relations judges Mathew Nduma Nderi and Njagi Marete, Prof Moni Wekesa and lawyer Alice Jepkoech Yano. The JSC is set to commence the interviews on Monday.

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