A five-judge bench will Friday morning deliver its verdict on a petition on charges brought against Deputy Chief Justice Philomena Mwilu.
The Director of Public Prosecutions Noordin Haji had asked the court to determine whether criminal proceedings can be initiated against a sitting judge and whether before the commencement of such criminal prosecution, it is constitutionally necessary to remove the judge from office.
Other issues to be considered by Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita is whether the prosecution can proceed to institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge, despite knowledge and information about the criminal conduct of the judge.
Justice Mwilu, whose trial was stopped by the High Court, has challenged the graft charges brought against her. She and lawyer Stanley Muluvi, were to face a total of 13 charges over monies allegedly received from collapsed Imperial Bank.
The State had lined up charges of abuse of office, failure to pay taxes, among others against Justice Mwilu but she obtained orders stopping the case, pending the determination of the petition.
The court had allowed British lawyer Khawar Qureshi to represent Mr Haji in the petition.
The five judges said Prof Qureshi was properly appointed to represent the DPP in the matter after he was issued with a practicing certificate.
The judges noted that the law allows the DPP to directly procure special prosecutors and Prof Qureshi’s brief was limited to Justice Mwilu’s case and for three months.
The court also allowed senators James Orengo and Okong’o Omogeni to represent the DCJ in the case.
In her petition, Justice Mwilu said the charges were deliberately brought to subject her to public humiliation and embarrassment. She said the motive is to remove her from office and the action by DPP is tainted with abuse of power and arbitrary exercise of authority.
The DPP, however, said the charges are not malicious or brought in bad faith but they will demonstrate so when given the chance.