by GW reporter
Deputy Chief Justice Philomena Mwilu will not be prosecuted as the evidence by the Directorate of Criminal Investigations (DCI) was illegally obtained, the High court ruled on Friday.
The five judge bench subsequently quashed the criminal case on those grounds but the Director of Public Prosecutions Noordin Haji plans to appeal the ruling and also move to the Judicial Service Commission (JSC), Mwilu’s employer.
The judges noted that the DCI violated Mwilu’s right to privacy by the manner in which it obtained its evidence by accessing her Imperial Bank Limited accounts.
“DCI’s way of obtaining the evidence has irredeemably rocked the foundation on which the charges stand,” they held.
The judges however held that there was factual and legal basis for initiating of the charges and they were not defective for lack of a complainant as the republic is also a proper complainant.
The high court judges William Musyoki, Mumbi Ngugi, Hellen Omondi, Francis Tuiyott and Chacha Mwita said they cannot fault the DPP’s decision to prosecute, but held the manner in which the DCI obtained its evidence was detrimental to administration of justice.
The five-judge bench that sat to hear the case in March this year was to determine whether the DPP can institute criminal proceedings when the Judicial Service Commission has taken no action against a sitting judge.
The JSC’s inaction was despite knowledge and information about the alleged criminal conduct of the judge.
To be determined was whether the criminal prosecution of a sitting Supreme Court judge amounts to encroachment on the independence of the Judiciary.
Also in question was whether DPP Noordin Haji could lawfully fail to commence criminal proceedings against a sitting judge without violating the Constitution.
Last year, the DCJ obtained High Court orders stopping her prosecution.
The charges facing Mwilu related to credit transactions between her and Imperial Bank Limited and an alleged failure to pay stamp duty on four properties she purchased between 2014 and 2016.
The bank is under receivership. Mwilu also faced charges of abuse of office, unlawful failure to pay taxes to KRA and forgery.
The DCJ has on numerous occasions said that the criminal charges sought to be pursued by the DPP arise out of three commercial lending transactions in the course of normal banking relations between her and the Imperial Bank of Kenya.
She said there are remedies other than her prosecution. The DCJ says there was malice and ulterior motives in deciding to charge her.
Mwilu was represented by lawyers Nelson Havi and James Orengo.