Bernice Mbugua @BerniceMuhindi
There was heated exchange in the High Court yesterday during the case in which Deputy Chief Justice Philomena Mwilu has challenged her prosecution when her lawyers objected to Queen’s Counsel Khawar Qureshi’s appointment as lead prosecutor.
Senior counsel James Orengo challenged the legality of Director of Public Prosecutions (DPP) appointment of Qureshi to act for the DPP without being first admitted as an Advocate of the High Court of Kenya.
But the DPP said Mwilu’s lawyers, Orengo and Okong’o Omogeni, should disqualify themselves from the case on grounds that they are senators who enjoy parliamentary privileges to quiz him in Senate committees.
Powers to appoint
Orengo, Mwilu’s lead counsel, told a five-judge Bench at the Milimani Law Courts in Nairobi that DPP Noordin Haji had no powers to appoint him to prosecute Mwilu’s case.
Orengo said the gazette notice by DPP announcing the appointment of Qureshi was unconstitutional and that Haji could only exercise the said powers in a criminal prosecution and not in a High Court case.
“Until the gazette notice is reviewed and amended accordingly, he cannot represent the DPP in these proceedings,” he argued.
Orengo further indicated the letter written by the Attorney General admitting Qureshi to practise as an advocate of Kenya was too casual and should have been done via a gazette notice.
The bench, which consists of Hellen Omondi, Mumbi Ngugi, Chacha Mwita, Francis Tuiyot, and William Musyoka, further heard that the said letter by the AG was directed to DPP and was not copied to the Chief Registrar of the Judiciary.
Prosecution team, led by Secretary of Public Prosecutions Dorcas Oduor, however, opposed Orengo’s argument, saying such comments were tantamount to questioning the powers of the AG and the DPP.
She said the defence lawyers should have formally filed an application in the form of judicial review. She said the Advocates Act gave the AG absolute discretion to appoint someone as an advocate with a rider that the person pays the registrar’s fee.
“When you pay the registrar’s fee, the court has to issue you with a certificate. What happens is that…if you show the receipt you should be able to practise,” she said. The DPP had a right to be represented by counsel of his choice, and they would not proceed if the Queen’s Counsel would not be allowed to lead their team, Oduor said.
The AG said Orengo was questioning the administrative action of the DPP and the AG and thus he should reduce his grievances to a formal application. The AG urged the court to proceed on presumption that the Queen’s Counsel has been appointed.
However, Orengo opposed the statements by the AG saying the court had rules, which should be followed.
“The Attorney General knows that when the then Solicitor General Njee Muturi tried to appear before a British court he was sent scampering, so what is good for goose is good for the gander. If they can treat us like that in their own country, we also have rules in our own country,” he said.
The five-judge bench directed Mwilu’s lawyers to file a formal application and stopped Qureshi from participating in yesterday’s proceedings. In another twist, the DPP said they would seek to have Orengo and Omugeni recuse themselves.
“As a senator he sat in the Senate yesterday where the DPP and AG appeared. This matter was extensively discussed, the background and documents and he was privy to them. Where do we draw the line between him as a senator who oversights the DPP?” Oduor asked.
She said Orengo was acting in senatorial privilege to access information regarding the Mwilu case and was also appearing for Mwilu in his capacity as an advocate, thus the conflict of interest. The bench directed all parties in the matter who want to file their preliminary objection to do so on January 17.