Justice Chacha Mwita has made multiple decisions that have left the Executive with an egg on its face after bullying its way outside the constitutional order.
Some of these have related to the Judicial Service Commission. Others include the controversial deportation of lawyer Miguna Miguna and the criminal case facing Deputy Chief Justice Philomena Mwilu.
Last month, Mwita ruled that President Uhuru Kenyatta violated the Constitution by failing to appoint Justice Mohamed Warsame to the Judicial Service Commission over 10 months after he was elected by his colleagues at the Court of Appeal.
Justice Mwita said the decision by the President not to gazette Warsame was unconstitutional and unlawful.
In mid-December last year, Mwita ordered Interior CS Fred Matiang’i and Immigration PS Gordon Kihalangwa to pay lawyer Miguna Miguna Sh7.2 million for unlawfully deporting him to Canada and breaking his Runda house.
The judge ruled that Miguna’s rights were violated and the two senior state officials were held personally liable for their actions, adding that taxpayers should not pay for the public officials’ individual misdeeds. It was Mwita who in August last year suspended criminal charges against Deputy Chief Justice Mwilu.
Mwita said the petition raises constitutional issues that need to be addressed, holding that the charges Mwilu faces arose out of a commercial dispute. He said that this being the case, the court needed to determine whether a commercial dispute could amount to a criminal charge.
The Executive complained at the time that the Judiciary was seeking to protect one of their own from facing criminal charges. In February last year, Mwita made a ruling that automatically gave Auditor General Edward Ouko the go-ahead to audit the billions of shillings annually allocated to the military and other security agencies.
In the landmark ruling, Mwita declared Section 40 of the Public Audit Act No 34, 2015, and others as inconsistent with constitutional provisions.
In 2017, just before the repeat elections, the Jubilee side in Parliament forced changes to the elections laws that were later challenged in court. The case fell in the hands of Justice Mwita, who, in December of the same year, suspended Elections Laws, 2017, pending conclusion of the case challenging their legality.
In his short ruling, Mwita said the suspension would remain until March 16 last year, when he would deliver a judgment. In April last year, he declared as unconstitutional some sections of the controversial Election Laws that were hurriedly passed by Jubilee MPs days to the October 26 poll.
He has been transferred to the High Court in Kajiado. Mwita will be replaced by Justice Welson Korir who was in Malindi.