Director of Public Prosecutions Noordin Haji wants a case against Deputy Chief Justice Philomena Mwilu referred to the Chief Justice for the formation of a three-judge bench to hear the matter.
Lawyers representing the DPP led by Dorcas Oduor say the case against DCJ Mwilu raises weighty and complex issues and needs to be addressed by a three-judge bench.
The DPP had earlier said that the charges were not malicious or brought in bad faith and they will demonstrate so when given the chance.The prosecution said the matter raises substantial questions of law and matters of public interest.
The embattled Deputy Chief Justice is facing various counts among them abuse of office and forgery together with lawyer Stanley Muluvi Kiima.
Nine months after her promotion to be a judge of the court of Appeal, Lady Justice Philomena Mwilu wanted to be given with a loan to get a decent home in Lavington, Nairobi.
” The request was a loan of sh. 80 million to be repaid over a period of 19 years ,” said Ms Mehbooba Shamji, the bank’s Business Development Manager , in a statement filed in court.
The property Justice Mwilu was eyeing could fetch a monthly rent of sh 400,000 besides her other properties which fetched sh. 600,000 a month.Knight Frank had valued the Lavington house , on LR 3734/205 , at sh. 120 million.
Justice Mwilu told the detectives that this was a personal private borrowing which was fully repaid . Director of Public Prosecution Noordin Haji alleges that Justice Mwilu used her office to improperly confer a benefit of sh. 12 million from Imperial Bank.
In his submission, the Attorney General, through Solicitor General Kennedy Ogeto, says the case against Mwilu raises weighty issues such as whether a sitting judge should be prosecuted, if a judge can be removed from office after commencement of a case and whether the prosecution can proceed to institute criminal proceedings.
The AG also wants queried whether the criminal prosecution of a judge amounts to encroachment of independence of the judiciary.
“We may have answers but these are issues that are contested and noble and these are issues that are of great public importance. These issues meets the threshold to have the matter be heard by a three judge bench,” said Mr. Ogeto.
He added: “This is a matter that fits to be heard by uneven number of judges.”
However, one of Mwilu’s lawyers Okongo Omogeni has opposed the application to have the matter referred to the chief justice.
“From the petition filed before you the issue for determination is whether the DPP is abusing his powers by trying to criminalize a commercial issue,” said Mr. Omogeni.
Justice Mwilu is charged that between August 15, 2013, and October 23 the same year at Imperial Bank Headquarters in Westlands, she used her office as a Judge of the Court of Appeal to improperly confer a benefit of Ksh.12 million to herself.
She is further accused of unlawful failure to pay taxes payable to the Kenya Revenue Authority (KRA) contrary to section 45(1)(d) as read with section 48 of the Anti-Corruption and Economic Crimes Act 2003.
This case is expected to attract a lot of interest as currently she is the Deputy Chief Justice of the Supreme court . A three judge as provided by the DPP is expected to give sufficient hearing to this case and offer justice. The DPP is concerned with Mwilu’s position which can easily interfere with the proper execution of the ruling on this case.