A bench of five high court judges dismissed parties’ applications to be enjoined in the case of DCJ Philomena Mwilu indicating that they failed to satisfy the court how they stand to suffer if they are not included in the proceedings.
The Kenyan Section of the International Commission of Jurists (ICJ Kenya), Federation of Women Lawyers Kenya (FIDA), and city lawyer Adrian Kamotho Njenga made applications for enjoinment indicating they had a stake in DCJ Mwilu’s case.
Attorney General Kihara Kariuki and the Director of Public Prosecution (DPP) Noordin Haji, in separate submissions to the High Court on Monday, cited bias and intention of parties to clog the case without assisting the court to determine the matter.
The five judges making the bench were Justices Chacha Mwita, Hellen Omondi, Mumbi Ngugi, Francis Tuiyott and William Musyoka.
Senior prosecutors Dorcas Oduor and Alexander Muteti argued the case for the DPP. Lawyer Immanuel Mbita, on the other hand, represented the Attorney General.
For the case of FIDA, the court noted that there was no way the organization could raise the issue of discrimination on the basis of gender upon which the application was premised.
Muteti, while responding to the gender issue stated, “The fact she assented to a Deputy Chief Justice is a confirmation that women are treated equally just like men. It is important to note that FIDA appears as a defence team in the lower court.”
Judges also observed that FIDA sought to introduce new issues in their petition by contesting that Mwilu had been prosecuted unconstitutionally. Attorney General’s counsel cited that the organization had already taken sides in the case.
“The petition does not raise any issue of discrimination on the basis on gender bias as presented by FIDA. Parties cannot be allowed to raise new in the case,” argued prosecutor Oduor.
Kamotho, on his part, claimed that the charges against the DCJ were against the rule of the law.
FIDA and Kamotho wanted the judges to enjoin them as interested parties while the federation wanted to participate as a friend of the court or “Amicus Curiae.”
Kamotho claimed that Mwilu was being charged with a non-existing law and that he wanted to defend her.
The ICJ, which claimed it had expertise and information to contribute to the case, which no other party had, and that it was neutral in the matters, was enjoined in the case.
The bench ruled, “We are persuaded that ICJ in other constitutional matters have and possess expertise in constitutional matters and can help the court in reaching a sound decision.”
