Mwilu’s 32-year career off balance as she fights charges

Tuesday August 28 2018

Deputy Chief Justice Philomena Mwilu with lawyer Okong’o Omogeni at the Milimani Law Courts, Nairobi, on August 28, 2018. PHOTO | EVANS HABIL | NATION MEDIA GROUP


Lady Justice Philomena Mbete Mwilu was at the apex of her career — before detectives knocked at her door in Nairobi, and threw her off balance, slightly after lunch yesterday.

As the convoy of five police cars left with her, sandwiched between detectives, the big hunt had not only come to an end, but the war on corruption, like the chilly weather outside, had frozen the Judiciary to the bone.

As the second-highest ranking judge in the country, the 60-year-old mother of three, had everything in her favour: Education, experience, and responsibility.

That was until two senior detectives from the Directorate of Criminal Investigations (DCI) walked into her secret closet and, for months, started digging up dirt. They not only found that she could be lacking one cardinal requirement of a judge, integrity, but also that she should be charged in a court of law for a criminal offence of abuse of office for personal gain.


Two years ago, the same DCI and Kenya Revenue Authority — which now accuse her of failing to pay some taxes, among other vices — had provided clearance letters paving her entry into the top seat; perhaps an indicator of the lacklustre manner in which the bodies carried out their duties, then.


The Daily Nation had first broken the story of the pending arrest on Monday, sending panic through the corridors of justice where — for years, judges had remained almost immune to prosecution.

Those who saw Justice Mwilu at the DCI headquarters on Kiambu Road, said she was worn-out, broken and fretful. Apparently, she had been arrested by the DCI, Mr George Kinoti, together with Director of Public Prosecution (DPP), Mr Noordin Haji, after they briefed Chief Justice David Maraga — more out of respect of the Judiciary, as Mr Haji would later remark during a press conference.

Later, she was driven to Milimani Courts, where she found comfort and solace as she was surrounded by legal peers led by Senator James Orengo.


When the story of the impending arrest first broke, the Judiciary was studiously silent even as detectives walked up the corridors and offices piecing together the last bits of evidence — or engaging in public relations on how to handle the arrest.

Justice Mwilu’s name and reputation are now at stake — and she has to fight to salvage her career, which might screech to a halt.

Before she was sworn in as the Deputy Chief Justice in October 2016, the judge had to overcome a damaging petition lodged by Kandara MP Alice Wahome, who had claimed before Parliament’s Justice and Legal Affairs Committee that the judge was incompetent and corrupt.

Ms Wahome, a lawyer, had also placed a similar petition before the Judges and Magistrates Vetting Board where she testified for three hours against the judge — who later on dismissed the issue as witch-hunt and claimed that the MP had engaged in mudslinging ever since they fell out over a ruling in an International Federation of Women Lawyers (Fida) case challenging the appointment of the Director of Public Prosecutions.  Ms Wahome had apparently lost the case.


If she falls, Justice Mwilu will follow in the footsteps of Nancy Barasa, the DCJ who was dethroned in 2012, when a Judicial Tribunal called for her removal after she was found guilty of “gross misconduct and misbehaviour”.

The judge was found guilty of assaulting a security guard, Ms Rebecca Kerubo, and waving a gun at her at the Village Market shopping mall in Nairobi on December 31, 2011. Interestingly, the appointment of Justice Mwilu had the support of Chief Justice Maraga and the then President of the Court of Appeal, Mr Paul Kihara, now the Attorney-General. By then, she had practised law for 32 years and served as a company secretary at the Electricity Regulatory Board.

By beating more than 14 other candidates, mostly her colleagues from the Court of Appeal during the recruitment, the choice of Justice Mwilu had turned to be a shocker to her colleagues in the Judiciary.

Parliament received seven complaints against her, mostly on delaying cases, and the Vetting Board believed that she had given satisfactory explanations on, especially her tenure in Eldoret, where she was stationed until 2012 when she was appointed to the Court of Appeal.


“During that busy period in that station, there were issues of delay with some of the judgments but in the end the Vetting Board found her fit and suitable to continue serving as a judge.

“She comes to the position with a varied background having served in the private sector, headed an organisation, served as a judge of the High Court and also in the Court of Appeal,” said Ms Priscilla Nyokabi, while tabling a report for Justice Mwilu’s acceptance.

Parliament had been told that Justice Mwilu “has a good record” and this was availed to the committee vetting her. The committee also told the House that the judge has “never been implicated in issues of lack of integrity”.

“We found that very commendable,” said Ms Nyokabi to an attentive House — unaware that two years later the detectives would dig up what the politicos couldn’t.

Ms Mwilu had packaged herself as a graft buster. She had even told Parliament how she once restituted money from clerks whom she found conducting corrupt practices in her court. For that, Parliament was told “we found that she is somebody who can fight corruption in the Judiciary and the report says as much”.


Why Parliament did not want to deal with the issues of bribery raised by Ms Wahome is not clear — although they took Ms Mwilu’s explanation that the bad blood emanated from an election petition that the MP had lodged against then Kandara MP James Maina Kamau in 2008.

“The matter of bribery, which Hon Alice Muthoni Wahome alleged on the part of the judge, should be investigated by the Ethics and Anti-Corruption Commission (EACC). As far as the nominee is concerned, we are convinced, as a committee, that being a judge in the Supreme Court case, she was one out of three, and so, her judgment was not the binding judgment,” said the committee.

When she was at the High Court, Justice Mwilu surprised everyone when she allowed the discussion of her personal relationship with Attorney-General Amos Wako to be discussed in an open court.

This was during an application by six women’s groups who wanted her stopped from hearing a case because of her relationship with Mr Wako.


“We have reason to believe that such association or closeness that they have is of a personal nature,” said lawyer Eric K’Omollo acting for the International Centre for Policy and Conflict.

Shortly after National Super Alliance (Nasa) of Raila Odinga won the presidential petition against Jubilee Party’s Uhuru Kenyatta after the August 8, 2017 General Election, some Jubilee politicians led by Irungu Kangata (now Murang’a Senator) said Justice Mwilu ought to have revealed her relationship with Wako because he was associated with one party in the petition.

“It is against the ethics of the Law Society of Kenya to fail to disclose a relationship with a judge that may affect the outcome of a case,” the legislator was quoted saying.

In public, Justice Mwilu has always defended her rise to the top seat and during a recent meeting of women accountants, she said she was always surprised by people who ask: “Who is Mwilu?” — regarding her position as DCJ.


She said that over the years, she has “managed to develop an exceedingly thick skin” since critics think that for women to rise they must be “propped up by men”.

“That didn’t happen to me, it won’t happen to me; I don’t need a man to sustain myself,” she said.

Justice Mwilu is one of the three Supreme Court judges — David Maraga, Mwilu and Isaac Lenaola — who last year overturned the election of President Uhuru Kenyatta who openly criticised the ruling and referred to the judges as “wakora” triggering criticism from far and wide.

Interestingly, the galaxy of lawyers who filled the court were Nasa sympathisers and politicians. 

Sources say that the arrest of Justice Mwilu is the beginning of an overhaul of the Judiciary.