Mwilu tackles Omtatah move

Thursday, January 7th, 2021 00:00 |
Deputy Chief Justice Philomena Mwilu. Photo/Courtesy

Deputy Chief Justice Philomena Mwilu has opposed a petition filed by activist Okiya Omtatah, which seeks to bar her from assuming the role of acting Chief Justice.

Omtatah in his petition wants Mwilu restrained from taking over as the acting CJ until the Judicial Service Commission (JSC) clears her of the allegations of corruption and abuse of office contained in the four petitions filed at JSC against her. 

Omtatah also wants the court to suspend the letter by Chief Justice David Maraga, which transferred all his functions to her.

The letter by Maraga directs Mwilu “to act as the Chief Justice of the Republic of Kenya and perform all duties and functions of Chief Justice from December 12, 2020... Until a new Chief Justice is appointed in accordance with the Constitution of Kenya.

Administrative functions

However in her response, Mwilu argues that complaints against judges are received by the JSC all the time and the mere existence of any such complaints does not bar judges from discharging their constitutional judicial or administrative functions. 

“My case cannot be any different. A judge’s personal integrity does not diminish or end nor does the judge cease being suitable to continue serving on account of pending complaints for removal,” she says in her affidavit.

Mwilu argues that as deputy head of the Judiciary she has  performed the very functions notified to her  by the Chief Justice via  his letter of December 11, 2020, whenever he was away.

According to the DCJ, the functions of JSC in so far as judges are concerned, are limited to the recommendation for appointment and removal of a judge.

“The functions do not include the appointment of an Acting Chief Justice or allocation of judicial or administrative duties and functions of the Chief Justice…JSC does not appoint one Acting Chief Justice and cannot therefore, be prohibited from undertaking a function not given to it,” she argues in court documents.

Mwilu notes that the letter dated December 11, 2020 from the Chief Justice to herself  was a formal administrative notification and the  issues raised by Omtatah, are  not merited and ought to have been addressed to the Chief Justice and not JSC or her.

“Section 5 (4) of the Judicial Service Act No 1 of 2011 designates an Acting Chief Justice in the event of absence of the Chief Justice and entitles the holder of office of Deputy Chief to act as the Chief Justice for a period not exceeding six months pending the appointment of a new Chief Justice in accordance with The Constitution of Kenya,” she notes.

“It follows, therefore, that Acting Chief Justice is an intervention arising by express operation of the law and not a creation or the wish of an outgoing Chief Justice as implied by the Petitioner herein,” she adds.

Mwilu argues that it is not lawful or in the public interest for the Kenyan public to be denied the benefit of the administrative duties and functions of the Chief Justice, which she is entitled to perform in an acting capacity on account of complaints before JSC,  which have not culminated in her  suspension or removal from office.

Omtatah in his suit papers argued that designating the DCJ as the Acting Chief Justice is unconstitutional given that it allows the DCJ to exercise full powers of the Chief Justice yet the appointment was done through a process which is not constitutionally permissible.

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