Philomena Mwilu deals Noordin Haji a blow in court battle

What you need to know:

  • Mr Orengo insisted that the charge sheet Justice Mwilu’s team was given was for case number 292 of 2018.

  • Justice Mwilu’s lawyers and Ms Oduor, however, agreed to have the DCJ freed as her legal team returned to High Court judge Chacha Mwita for a correction of the case number.

  • Justice Mwita directed the respondents including the DPP and the Director of Criminal Investigations and the Attorney-General to respond to the suit within seven days.

Deputy Chief Justice Philomena Mwilu on Wednesday got a temporary reprieve after the High Court stopped her prosecution over abuse of office and failure to pay taxes.

But even after her lawyers obtained orders stopping the prosecution, chief magistrate Lawrence Mugambi only deferred the matter to tomorrow, after it emerged that they had used the wrong case number to argue the case.

Moments after Mr Mugambi was furnished with a High Court order suspending the criminal trial, deputy Director of Public Prosecutions Dorcas Oduor shot up and raised a nearly fatal error in the document—the case number in the document was wrong.

“Your honour I have an objection. The order number five is against criminal case number 292 of 2018. Your honour the case before the court is 38 of 2018,” Ms Oduor stood up to say.

One of the orders granted reads, “an interim conservatory order be and is hereby issued staying proceedings against the petitioner in criminal case 292 of 2018 pending before the Chief Magistrate’s court at Nairobi until October 9, 2018, when the court will give further directions on the hearing of the petition.”

AN INTERESTED PARTY

She also wondered whether the orders obtained only affect Justice Mwilu or also her co-accused Stanley Muluvi Kiima. Mr Kiima, who acted as Mwilu’s lawyer in the transaction involving Imperial Bank Limited, has been named as an interested party in the petition before the High Court.

Mr Orengo insisted that the charge sheet Justice Mwilu’s team was given was for case number 292 of 2018. Mr Mugambi however ruled in favour of Ms Oduor, arguing that court orders are specific.

Justice Mwilu’s lawyers and Ms Oduor, however, agreed to have the DCJ freed as her legal team returned to High Court judge Chacha Mwita for a correction of the case number.

The chief magistrate adjourned the matter to Thursday mid-morning. The court also directed that Justice Mwilu be freed on the same bond terms of Sh5 million, which she executed on Tuesday.

CONSTITUTIONAL ISSUES

In the application before the High Court, the deputy CJ through Senior Counsel Okong'o Omogeni said the petition raises serious fundamental constitutional issues that may affect her liberty and dignity. He also said the petition has high chances of success.

“Indeed, based on the material presented, the applicant has made out a prima facie case that warrants the grant of the orders sought. It is only fair and just that the reliefs sought be granted,” Mr Omogeni argued before Justice Mwita.

He further argued that the case is “purely commercial transactions” and which were concluded. The case, the lawyer said, is not coincidental and appears to be part of a larger scheme to embarrass her as the country's second top judge.

COMMERCIAL MATTER

In his ruling, Justice Chacha Mwita said there are constitutional issues to be addressed in the petition, especially on grounds that the matter was a commercial matter and whether it can lead to the arrest of a judge.

Justice Mwita said the question to be addressed is whether issues relating to a transaction between a party and commercial institution would lead to criminal charges.

“There is also a wider question whether a judge would be said to have failed to pay for stamp duty while the lawyer who acted for her faces charges of forgery,” he said, adding that there are constitutional questions to be addressed in the area of commercial law.

Justice Mwita directed the respondents including the DPP and the Director of Criminal Investigations and the Attorney-General to respond to the suit within seven days. The case will be heard on October 9.