alexa Shouting match that broke stalemate over Philomena Mwilu's arrest - Daily Nation

Shouting match that broke stalemate over Philomena Mwilu's arrest

Wednesday August 29 2018

 Philomena Mwilu

The vehicle carrying Deputy Chief Justice Philomena Mwilu is driven from the Directorate of Criminal Investigations on Kiambu Road, Nairobi to the Milimani Law Courts on August 28, 2018. PHOTO | EVANS HABIL | NATION MEDIA GROUP 

More by this Author

Tuesday morning appeared ordinary at the Supreme Court as some judges presided over criminal appeals while clerks filed documents at the registry.

The usual skeleton staff of security officers also did their usual patrols around the compound.

But as everyone was going about their business, members of the Judicial Service Commission (JSC) were holed up in the Chief Justice’s boardroom on the building’s second floor.

In attendance were Chief Justice David Maraga, who chairs the commission, Deputy Chief Justice Philomena Mwilu, Mercy Deche (vice-chairperson), Emily Ominde, Justice Aggrey Muchelule, and Prof Tom Ojienda.

The agenda?

The looming arrest and arraignment of Kenya’s second most powerful judge.

Earlier, Director of Public Prosecutions Noordin Haji had walked into the boardroom through the building’s back entrance and joined the meeting.


A spot check at the Supreme Court parking area by the Nation team revealed that the DPP had left some minutes after 9am.

Prof Ojienda, the Law Society of Kenya’s representative in the JSC, walked out half an hour later.

Chief Justice Maraga would also exit the boardroom at 10.15am and walk into his office on the first floor.

Things took a dramatic turn at 1pm when a sleek black BMW 7 Series drove into the judges’ parking lot with just one police motorcycle leading it.

In the vehicle were DPP Noordin Haji and criminal investigations boss George Kinoti, whose arrival would have, on an ordinary day, included a few chase cars and a large entourage of bodyguards.

The duo walked into the same boardroom on the second floor, with members of the fourth estate following closely behind.


As soon as the first camera was raised, security personnel became hostile, blocking anyone who tried to get into the building.

Photojournalists, including Nation’s Dennis Onsongo, had it the roughest as the security thwarted any attempts to get shots of the drama brewing at the seat of Kenya’s highest court.

Within minutes, all journalists had been forced back into the compound.

After 25 minutes, the back doors opened and out walked Mr Kinoti, a group of DCI officers and Judiciary staff, including the second most influential one — Justice Mwilu.

“It was out of respect for her as the Deputy Chief Justice,” Mr Haji would later say of his two visits to the Supreme Court on Tuesday.

“I did not go there to warn her. I went to inform her of the charges.” 

By then, four DCI vehicles had been parked at the Supreme Court.

Justice Mwilu was escorted into one of the vehicles, which sped off towards the investigative agency’s headquarters on Kiambu Road.


A few minutes later, DPP Haji announced that he would hold a press conference at his NSSF Building, Upper Hill office to confirm Justice Mwilu’s arrest over alleged graft.

The DCJ was escorted to the Directorate of Criminal Investigations offices at 12.30pm and taken to the Investigations Bureau offices, where she was interrogated.

At the bureau, Ms Mwilu’s fingerprints were taken and various forms relating to her case filled in the presence of lawyers, detectives from the Banking Fraud Investigation Unit, Mr Kinoti and JSC employees.

As she was being processed for court, lawyers, including John Khaminwa, Edward Waswa, Harun Ndubi and Okong'o Omogeni, made their way to the DCI.

She spent four hours at the Investigations Bureau before being escorted out in a convoy of vehicles belonging to the DCI at 4.30pm.

The vehicles, with sirens blaring, headed to the Milimani Law Courts, where the judge was charged before a magistrate.


It had taken two days of endless arguments to get the suspect before court.

On Monday, the Judiciary was formally informed that the judge was under investigations and that she was at risk of arrest and prosecution.

Piecing together the exact events is difficult, but an agreement seemed to have been reached to ensure total compliance with the law in managing the case.

Tuesday morning, Mr Haji and Mr Kinoti were kept waiting in the boardroom for the DCJ.

After a while they left junior officers to take the DCJ’s statement.

Her statement, in the view of one person who saw it, did not rebut the allegations against her.

Later, the DCI and the DPP returned to the Judiciary and the DPP reviewed the statement and took the decision, on the spot and on the basis of the statement, that there was a strong case against the judge.

He gave consent for prosecution and left.


It was left to the DCI to do his job of effecting arrest, which was by no means easy, given the arguments of the lawyers present and the judge herself.

According to officers familiar with the case, the position of the judge was that the matters in question were commercial — between a bank and its client — and therefore civil, not criminal.

The police, on the other hand, are said to have countered that depositors’ money had been stolen and there had been forgery, which are criminals matters.

The lawyers, on the other hand, argued that judges are subject to a different procedure: a complaint should be forwarded to the JSC, which will consider it and forward it to the President to form a tribunal to try the judge and recommend her removal if she is found guilty.

However, there are numerous complaints before the JSC and rarely is any considered to have the merit to be escalated to the President. Besides, the DCJ is a member, and the body is not fully constituted anyway.


According to a source who was present, it took the intervention of Mr Kinoti, a forceful policeman, to finally breach the intellectual wall of arguments that had encircled the judge.

Mr Kinoti, the source said, informed the group at a moment when voices were starting to get raised, that he had dealt with many senior and junior people in criminal matters, and that the procedure was the same: caution, arrest, processing of fingerprints and statements, and arraignment before a court.

With the threat of ugly scenes hanging over the group, they departed for DCI headquarters, the arguments finished … for the moment.