Mwilu's Tenure as Acting CJ Cut Short by Court

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    Former Chief Justice David Maraga (right) hands over documents to then acting Chief Justice DCJ Philomena Mwilu (left) at a ceremony held at the Supreme Court on Monday, January 11, 2021
  • Acting Chief Justice Justice Philomena Mwilu has been barred from sitting as a Supreme Court judge effectively barring her from acting as the Chief Justice. 

    According to a ruling by High Court Judge PJ Otieno on Friday, January 29, Mwilu has been barred from a member of the Supreme Court, member of JSC and ombudsman of the Judiciary.

    The law requires that anyone occupying the office of the CJ should be a member of the supreme court. The ruling, therefore, cuts short her stint as head of the Judiciary in an acting capacity unless she successfully appeals.

    DCJ Philomena Mwilu in court.
    DCJ Philomena Mwilu in court in 2018.

    "That a conservatory order be and is hereby issued against the respondent restraining her continued occupation of the offices of Deputy Chief Justice of the Republic of Kenya, Judge of the Supreme Court of Kenya, Member of the Judicial Service Commission and Ombudsman of the Judiciary pending the hearing and determination of this application," the ruling read in part.

    The application certified as urgent was filed by Isaiah Mwongela who accused Mwilu of abuse of office. 

    She was accused of improperly benefiting from a Ksh12 million loan from collapsed Imperial Bank. 

    Law Society President Nelson Havi who is also her lawyer objected to the move.

     "A judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case.

    "Only two explanations for this; deep state has a lot of dirt on Justice PJ Otieno and has banked a post-dated cheque given to it or the order is a fraud," he tweeted. 

    Activist Okiya Omtatah had also gone to court seeking to bar Mwilu from becoming the acting CJ.

    However, Justice Mrima ruled that none of the cases before JSC had been determined and it would be unfair to remove her.

    The decision to bar the DCJ from sitting in the JSC stops her from participating in process of selecting the next CJ to succeed David Maraga, which is expected to begin after applications close on February 10.

    Director of Public Prosecutions had also accused the Deputy CJ of failure to pay capital gains tax on the return and stamp duty of 4% on value of a piece of land she bought between December 2014 and March 2016 for Ksh160 million.

    Acting Chief Justice Philomena Mwilu during a past hearing.
    Acting Chief Justice Philomena Mwilu during a past hearing.