Mwilu unfit to hold office, Haji tells JSC

Wednesday March 18 2020

Deputy Chief Justice Philomena Mwilu is not fit to continue holding office for using her status to enrich herself, evade taxes and engage in inappropriate communication with suspects in criminal cases, a petition seeking her removal states.

The petition was filed with the Judicial Service Commission (JSC) Thursday by the Director of Public Prosecutions (DPP) Noordin Haji following a pledge he had made on May 31 in his reaction to the High Court ruling on the petition Ms Mwilu had filed challenging attempts by the DPP to charge her.
Mr Haji, in the petition, asks the JSC “to find that there are sufficient and overwhelming grounds for recommending to His Excellency the President that a tribunal be appointed to inquire into these events and particularly to find reason for the removal of the respondent from the office, station and position of the Deputy Chief Justice (DCJ).”
In the ruling of May 31, the High Court held that cases against judges “involving misconduct with a criminal element committed in the course of official judicial functions, or which are so inextricably connected with the office or status of a judge that they, perforce, must be deemed to be official misconduct, must first be referred to the body responsible and the disciplinary or removal process commenced.”
Thus, the court directed that the charges against Ms Mwilu, who is also the vice president of the Supreme Court, of abuse of office and improperly conferring a benefit to herself constituted professional misconduct and the first point of call should have been JSC.
It is on that background the DPP has filed the instant petition in which he states that Ms Mwilu “is constitutionally unfit to hold the office of a judge of the Supreme Court of Kenya, and should be removed” on grounds of breach of the Judicial Code of Conduct and gross misconduct and misbehaviour.
On the particulars of breach of the Judicial Code of Conduct, the petition accuses Ms Mwilu of obtaining a loan of Sh12 million from the collapsed Imperial Bank by virtue of her office as a Court of Appeal judge.

The DPP says the loan was granted to her even though she had not applied for it and was therefore not appraised for her creditworthiness as required, but instead dealt directly with the bank’s managing director. Moreover, the DPP alleges that Ms Mwilu broke the agreement with the bank that she would repay the money in three months.
“The respondent never repaid the loan by January 23, 2014, but actually only began repaying on November 26, 2014,” the DPP states in the petition.
“The respondent, therefore, used her judicial office to improperly enrich herself in violation of clause 6(4) of the Code, thus eroding public confidence in the Judiciary,” the DPP says.
Similarly, Ms Mwilu is accused of failing to honour her promise to the bank to replace securities for another loan of Sh60 million.
“Instead of replacing the securities as promised, the respondent proceeded to sell the proposed replacement security (L.R. No. 3734/1129) to a third party, effectively taking it out of reach of IBL and extinguishing its rights thereto,” the DPP alleges.
Under breach of the Judicial Code of Conduct, the DPP also accuses the Deputy Chief Justice of evading stamp duty and capital gains tax and then forging documents to claim that she had paid. It is also the DPP’s contention that the Sh12 million interest-free loan Ms Mwilu received, the tax evasion, forgery and fraud dented her integrity and did not reflect well on the dignity and integrity of the Judiciary.

The DPP also alleges that Ms Mwilu engaged in inappropriate communication with one Omar Ikumu Arafat, who was a suspect in two cases before the Nairobi Milimani Chief Magistrates’ Court. In the first case, the suspect had been charged with the offence of obtaining money by false pretence and being in possession of forged papers.
In the second case, he had been charged with giving false information to a person employed in the public service.
Ms Mwilu has consistently denied the charges the DPP brought against her and even questioned the motive behind her arrest and arraignment in 2018.
She also contended that the allegations against her are pure commercial (civil) transactions concluded in the normal course of the banking relationship between her and the bank.
“The allegations have no rational correlation with the pursuit of criminal justice in the public interest,” she stated.
Pressure will now be on the JSC to quickly consider the petition and come up with a determination whether the petition raises sufficient ground that warrant the removal of the DCJ.
For the DPP, the challenge will be to prove his case based on evidence the High Court had found to have been acquired illegally.