Bernice Mbugua and George Kebaso
It is a huge relief for Deputy Chief Justice Philomena Mwilu after the High Court stopped her prosecution over corruption charges.
A five-judge Bench ruled that the evidence which led to her prosecution was illegally obtained by the Directorate of Criminal Investigations.
The judges noted that the DCI obtained and used a court order that had no bearing to the case to look into her accounts at the collapsed Imperial Bank Limited thereby violating her right to privacy.
“The conduct of DCI has irredeemably rocked the foundation on which the charges stand,” read Justice Hellen Omondi.
But addressing a press conference immediately after the judgement, Director of Public Prosecutions Noordin Haji said they would move to the Court of Appeal next week to challenge it.
Accompanied by his deputy Dorcas Oduor and the director of the Directorate of Criminal Investigations (DCI) George Kinoti, Haji said they had been prepared for any eventuality on the matter.
“The appeal papers are ready and we are moving to court any time next week,” said Haji.
The embattled DCJ was arraigned last year and had obtained a temporary order to stop her prosecution.
She faced charges of abuse of office, accepting money in the form of a gift, failure to pay taxes, and obtaining by false pretence security belonging to Imperial Bank, which was placed under receivership.
According to the charges, she gave herself Sh12 million between August 15, 2013 and October 23, 2015 at Imperial Bank headquarters in Westlands, Nairobi.
She is also accused of influencing the bank’s receiver manager to discharge two title deeds charged to the bank to obtain a Sh60 million loan.
The DCJ is also accused of failing to pay taxes amounting to Sh3.1 million for property she bought in Nairobi and forgery of a Kenya Revenue Authority stamp duty declaration.
Justices Hellen Omondi, Mumbi Ngugi, Chacha Mwita, Francis Tuiyot, and William Musyoka noted that the charges such as abuse of office should have been referred to the Judicial Service Commission.
The judges, however, held that the DCJ’s arrest last year was in accordance with the law and did not occasion her any embarrassment.
“The petitioner did not demonstrate how she was mishandled or harassed at the time of her arrest,” ruled the bench.
The judges further noted that the charges were not defective and the decision by DPP to prosecute was not in contravention of Article 157.
“We cannot fault decision of DPP to prosecute her but we hold that the manner in which DCI obtained the evidence was illegal and detrimental to administration of justice,” they said. The Bench further noted that judicial immunity does not shield the DCJ from prosecution.
Mwilu had claimed that the criminal charges were sustained efforts to hound her out of office and commencement of the criminal proceedings is part of her joining in nullifying President Uhuru Kenyatta’s election.
Justice Mwita however said she had duty to demonstrate alleged violation but has not produced any evidence to show the charges were instituted at the behest of the Executive.
“We have no reason to doubt the DPP that he did not act independently. The petitioner did not provide any evidence to also show any connivance or conspiracy between the DPP and DCI,” he said.
The judge, however, noted that the commencement of the prosecution was against the backdrop of very public utterances by the President that there shall be a revisit of the Judiciary.
“A person who against such remarks are made by the Head of State would be forgiven if he or she were to be troubled or terrified. This court cannot ignore possible perception held by the ordinary man of the utterances made by the President,” said Justice Mwita.
He noted that when a President’s words, even if disputed, contain the power, respect and prestige and owner of the presidency.
“The effect of the revisit remark was to put any action by the Executive that may be perceived to prejudicial to the Judiciary or its members under great public scrutiny,” he said.
The judge further noted that the DCJ was not only a senior member of the Judiciary but is one of the four judges who rendered the majority judgment that prompted the remarks of the President.
“It is in these circumstances we deem it appropriate and in the administration of justice that we carry out an inquiry into the merit of the petitioners contention that the charges against her are without legal or factual foundation,” ruled the judges.