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Student seeks to block 3 judges from Court of Appeal jobs

Thursday June 27 2019

Judicial Service Commission (JSC) members led

Judicial Service Commission (JSC) members led by Chief Justice David Maraga at Re-Insurance Plaza in Nairobi on Tuesday, June 18, 2019 during the recruitment of Court of Appeal judges. The commission is seeking to recruit 11 judges. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

A student wants to stop the Judicial Service Commission from declaring the results of three judges, who have been interviewed for Court of Appeal jobs.

In the petition filed on Wednesday, Mr Zack Kinuthia, a University of Nairobi law student wants the JSC stopped from declaring the results of Justices Hellen Omondi, Mumbi Ngugi and Francis Tuiyott, pending the determination of the matter.

He said he has already lodged a petition before the commission concerning the conduct of the three judges together with Justices William Musyoka and Chacha Mwita over their decision in to blocked the prosecution of Deputy Chief Justice (DCJ) Philomena Mwilu.

'IRRELEVANT ORDER'

In the decision, the Judges quashed the charges against Justice Mwilu on grounds that an order used by the Director of Criminal Investigations (DCI) investigating her accounts had no bearing to the case.

“Having found, however, that the DCI illegally obtained evidence against the Petitioner (Justice Mwilu) by gaining access to her accounts with IBL (Imperial Bank Ltd) through the use of a court order that had no bearing on her accounts and having found that the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” the judges ruled.

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Justice Mwilu had challenged the planned prosecution arguing that the allegations against were commercial transactions, concluded in the normal course of the banking relationship between her and the bank.

She said the matter has no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the Director of Public Prosecution (DPP) and DCI was an abuse of power and arbitrary exercise of authority.

'GROSS MISCONDUCT'

But Mr Kinuthia said the five Judges neglected to exercise their judicial function with due diligence resulting to gross misconduct.

He said despite finding that the DPP Noordin Haji acted within the law, the Judges “went on a fishing expedition with the exclusive intention of looking for ways of ensuring” that the DCJ does not stand trial.

“The bench grossly erred by reaching the conclusion that the DCI illegally obtained evidence against the petitioner by gaining access to her accounts using a court order that had no bearing to the case,” he said.

The student said the finding was fatally defective because DCJ Mwilu did not plead right to privacy and the least the judges could do was to ask parties to make submissions on the matter.

Mr Kinuthia said the determination was calculated in ensuring a specific outcome in spite of glaring facts.