A businessman Wednesday filed a petition before the Judicial Service Commission seeking the removal of Deputy Chief Justice Philomena Mwilu for alleged gross misconduct and breach of judicial code of conduct.
In the petition received at the JSC, Mr Peter Kirika argued that a Bench of five judge noted that there was factual and legal bases for the prosecution of Justice Mwilu for alleged abuse of office and obtaining money by pretence.
The five judges quashed the charges last week, accusing the police of obtaining the information concerning Justice Mwilu’s accounts illegally. But the Judges ruled that there was a basis for charging her although the matter should have been referred to the JSC.
Director of Public Prosecutions Noordin Haji has already filed a notice to appeal against the decision and also promised to file a complaint with JSC.
Mr Kirika said in the petition that the judges arrived at the finding through applying the evidentiary and public interest tests contemplated in the National Prosecution Policy 2015.
He said the court said the DPP had demonstrated that the circumstances under which Justice Mwilu obtained the loan from Imperial Bank were unusual thereby justifying the charge of abuse of office.
“There is therefore evidence of gross misconduct and misbehavior and in breach of judicial code of conduct as well as breach in the constitutional principles enshrined in Articles 10 and 75,” he said in the seven-page petition.
He said the commission has previously removed from office judges whose “misdeeds” he said were a pale comparison to Justice Mwilu’s.
Mr Kirika said the petition raises sufficient grounds for the removal of Justice Mwilu from the office of Deputy Chief Justice and the petition should be sent to the president for action as required under Article 168(4) of the constitution.
Mr Kirika who said he is interested in the matter as a member of the public noted. “She (Justice Mwilu) got away on a technicality despite substantive issues being raised by the DCI on her conduct. The court also concurred that the matters raised were prosecutable.”
The businessman said only a tribunal could prove whether Justice Mwilu is innocent or not. “Although there was evidence of misconduct and abuse of office, the matters were not canvassed because of the application that she filed. Rather than taking plea, she opted to file a petition in which she claimed that the process of her arrest was done unprocedurally,” Mr Kirika said.
He added: “Irrespective of the procedure used, she should not be allowed to escape from justice. The matters raised need to be looked at into their conclusion.”
While quashing the charges, Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita dismissed all the grounds advanced by Justice Mwilu, challenging her prosecution.
“Having found, however, that the DCI illegally obtained evidence against the petitioner by gaining access to her accounts 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 said.
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