A battery of high-profile legal minds yesterday sidestepped the prosecution landmine—taking a plea—that might have sealed the fate of embattled Deputy Chief Justice Philomena Mwilu by temporarily securing High Court orders suspending the criminal case against her.
In a day of high noon legal drama, Mwilu and her co-accused Stanley Munuvi Kiima assembled 32-member defence team, among them Kenya’s most celebrated lawyers who successfully manouvered her out of taking a potentially perilous plea on litany of charges including forgery, abuse of office and tax evasion that would have promptly pre-empted her suspension as DCJ and likely exit from the Judiciary.
The lawyers, comprising former Vice President Kalonzo Musyoka and Siaya Senator James Orengo, divided themselves into two groups—one engaging the Anti-Corruption court while the other one moved to the High Court to seek orders stopping the entire procedure until a constitutional interpretation was made.
And unlike other high-profile graft suspects who have previously been paraded before the Anti-Corruption court, Lady Justice Mwilu was not in handcuffs, was surrounded by her bodyguards at the Milimani Law Courts and drove in in her official Mercedes Benz. Mwilu is out on a personal bond of Sh5 million.
It was the High Court that first set the ball rolling when it dealt the Director of Public Prosecutions Noordin Haji a blow by halting Mwilu and Kiima’s prosecution only for something of anti-thesis to crop up when Anti-Corruption Court chief magistrate Lawrence Mugambi declined to stop the prosecution after it emerged that the court file number used at the High Court to halt the criminal proceedings was wrong.
He said there was no order stopping the trial as the number in the order presented by the defence referred to a different matter.
“Court orders must be specific and should never give room for interpretation. I agree with the State that orders by the High Court do not apply to this matter. In the meantime, the accused persons remain out on the same Sh5 million personal bond terms granted yesterday,” he ruled.
Mugambi adjourned the proceeding to Friday after the deputy DPP Dorcas Oduor raised an objection to have the case put off, saying the order issued by High Court judge Chacha Mwita was for a different case.
“The order obtained by Mwilu is supposed to stop criminal case 292 of 2018 but the case number for the DCJ before the Anti-Corruption Court is 38 of 2018. These proceedings are, therefore, not stayed”, said Oduor.
Lawyers for DCJ appeared unhinged after Oduor dismissed as inconsequential, the conservatory orders issued by Mwita.
Mugambi, ordered that Mwilu and Kiima move to the High Court to clarify the orders to suspend their case until October 9.
Mwita suspended criminal charges against the DCJ, saying her petition raises constitutional issues that need to be addressed. “I allow the application by the petitioner herein the court needs to address the question as to whether a commercial transaction between a party and commercial institution would amount to criminal charges,” he ruled.
The defence team made lengthy submissions spanning more than two hours which the DPP, through Oduor, claimed was delaying tactics to ensure they secured an order from the High Court staying the case so the DCJ would not take plea.
During the submissions at the lower court, Mwilu accused DPP Noordin Haji and DCI George Kinoti of using a criminal process to maliciously remove her from office.
“The DPP has taken these matters to the DCI with ill-motives because he knows that is where he can give orders as opposed to the EACC,” said Orengo, adding that the offences preferred against the DCJ purely relate to a commercial dispute where criminal court has no jurisdiction.
“This is not a criminal prosecution and when the evidence will be put before the appropriate forum it will emerge that a purely commercial transaction has been criminalised and took place nearly five years ago,” he said.
And Kalonzo urged the magistrate to block the plea taking, saying, “the matter goes to the core issue of integrity within the Judiciary, including its independence.”
Orengo questioned timing of the arraignment, five years after the alleged offences were committed. “This charge sheet is improper and Mwilu should not take a plea,” he said, adding that the defence will prove the trial is “a collateral attack on Judiciary and weaponisation of criminal justice”.
Veteran lawyer John Khaminwa said the charges against Mwilu are trumped up, had no meaning and were being pushed by certain individuals who are hell-bent on ensuring there is a change in leadership at the Judiciary. “Your honour, you have no jurisdiction to take plea from the DCJ. She is still the DCJ and sitting on the Judicial Service Commission.”
Apart from Kalonzo, Orengo and Khaminwa, other lawyers representing Mwilu include Nelson Havi, Harun Ndubi, Okong’o Omogeni, Dan Maanzo, Julie Soweto, Jackson Awere, Peter Kaluma, Millie Odhiambo and Mutula Kilonzo Jnr.