Philomena Mwilu survives as court stops prosecution over graft

Wednesday March 18 2020

Deputy Chief Justice Philomena Mwilu was reprieved on Friday by a court's decision to stop her prosecution over corruption.

A five-judge bench quashed Ms Mwilu's intended prosecution by Director of Public Prosecution Noordin Haji for reasons including the manner in which the Directorate of Criminal Investigations obtained evidence against her from the collapsed Imperial Bank Limited.

Ms Mwilu faced a total of 13 counts, seven of which related to failing to pay about Sh 12 million stamp duty to the Kenya Revenue Authority. She allegedly committed the offences between 2013 and 2016.

The DCJ's case was heard by justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita.


DCJ Mwilu moved to the High Court to challenge her criminal prosecution following a recommendation by the DPP for her to be charged with obtaining execution of a security belonging to Imperial Bank by false pretences.


Mr Haji had asked the court to determine whether criminal proceedings could be initiated against a sitting judge and whether before the commencement of the prosecution, it would be constitutionally necessary to remove the judge from office.

Ms Mwilu was also to be charged with abuse of office, accepting a monetary gift in circumstances that undermined public confidence in her office, failing to pay taxes and disregarding the law. She was to face the 13 counts alongside her lawyer Stanley Muluvi.

In court on Friday, the judges said the charge of obtaining money by false pretences, which formed the bedrock of the case, could not be sustained as the evidence was obtained illegally.

They explained that the directorate used a court order that had no bearing to the case to look into Ms Mwilu's accounts at the bank.

It was on this basis that they blocked the prosecution of the DCJ and her lawyer.


The court further said that some of the charges the DCJ faced, such as abuse of office, should have been referred to the Judicial Service Commission.

The judges also said that counts on forgery and failure to pay stamp duty and other taxes had no factual and legal basis.

Ms Mwilu's lawyers, led by Mr James Orengo, had argued that the allegations should have been taken before the JSC before being handled by the DCI.

Mr Orengo told the court that there was no evidence to support the claims and that Ms Mwilu’s prosecution was instigated by malice.

He further argued that the accusations were of a civil nature yet the matter was being treated as criminal.


In a statement in response to Friday's ruling, the DPP said he would submit the evidence to the JSC for further action and pursue an appeal.

Mr Haji regretted that the court annulled the charges over infringement of Ms Mwilu's privacy.

"No party advanced any arguments on this and the court did not invite submissions before reaching its conclusion on this ground," he noted.

He said that had this happened, the prosecution would have presented warrants on the DCJ's bank accounts affidavits by investigating officers and order from the Milimani Law Courts for the DCI to look into the accounts and documents the bank was served with.

"We had other sources of evidence, some brought by the suspects," he added.

The DPP also noted that the court's ruling contradicted a finding that orders shall only be issued on matters that are expressly pleaded in a substantive application and canvassed in court by both parties.

While noting that the court found that the abuse of office and fraud charges had merit, and that the former was criminal in nature and entailed professional misconduct, Mr Haji said, "We are sending the evidence to the JSC immediately for further action".

He added, "We shall appeal on ground of criminal impropriety."