CJ Maraga to determine Mwilu’s case by constitution of a bench

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Chief justice David Maraga

Mwilu’s case turns out lawfully complicated as Chief Justice David Maraga has been refered the case to constitute a bench that will hear and determine the case in which his deputy Philomena Mwilu is challenging her prosecution.

In an application the High Court judge Enoch Chacha Mwita has ruled that because it is the first time a senior judge was arrested in the precincts of the court for possible prosecution since the promulgation of the new Constitution, the matters raised in the case need to be determined by a bench.

“I hereby certify this application as one raising a substantial matter of law, hence refer it to CJ for consideration of empaneling a bench to hear and determine it,” said Justice Mwita.

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High Court Judge Chacha Mwita at Milimani court

On August 29, a day before her plea-taking, Justice Mwita of the Constitutional and Human Rights Division blocked the criminal proceedings to allow resolution of issues on constitutionality of the charges.

The Director of Public Prosecutions Noordin Haji had asked the court to have the matter referred to the CJ, arguing that the court needs to determine whether prosecution of a sitting superior court judge amounts to an attack on the Judiciary’s independence.

Ms Mwilu argued that she can only be charged “should the Judicial Service Commission (JSC) petition the president to form a tribunal and a recommendation for removal thereby made”

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DCJ Philomena Mwilu with her lawyers at a Milimani court on Wednesday August 29.

The DPP also wants the bench to determine whether criminal proceedings can be instituted against a sitting judge and whether independent bodies can be curtailed from exercising their mandate.

DCJ Mwilu moved to court to challenge her criminal prosecution. She has, however, not taken plea to any charges leveled against her. So far the court is divided between justice in Mwilu’s case and justice for Independence of the Judiciary

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