Ruling on Mwilu tosses Judiciary into a quandary

Monday, February 1st, 2021 00:00 |
Deputy Chief Justice Philomena Mwilu. Photo/Courtesy

Bernice Mbugua and Hilary   Mageka

Last Friday’s ruling barring Philomena Mwilu from acting as Chief Justice has thrown the Judiciary into confusion with her lawyers hinting that she might move to court to challenge the order.

Meru High Court Judge Patrick Otieno ordered Justice Philomena Mwilu to step aside as Deputy Chief Justice, pending the determination of a case filed by one Isaiah Mwongela.

“A conservatory order is hereby issued against the first respondent restraining her continued occupation of the offices of the Deputy Chief Justice, Judge of the Supreme Court and member of the Judicial Service Commission and Ombudsman of the Judiciary,” read the order

But immediately the order was issued, legal experts described the unprecedented ruling as “a judicial coup d’état and judicial recklessness.”

Siaya senator James Orengo who represented Mwilu in a graft case against her noted that the orders obtained against the acting CJ were an egregious act of judicial terror and oppression.

“The rule of law is broken and judicial anarchy sets in when judicial processes are used and abused to achieve unlawful outcomes or brazen political objectives,” he said.

Law Society of Society (LSK) President Nelson Havi said in a tweet, “A Judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case”.

Lawyer Mutula Kilonzo Junior who is also Makueni Senator on his part urged the Court of Appeal to stay the said order.

“The Court of Appeal should not have any difficulty staying the ex-parte order purporting to remove Acting Chief Justice Philomena Mbete Mwilu. The people of Makueni are taking notes,” he said

Senior Counsel Otiende Amollo said in a tweet: “While I support judicial independence, to make ex parte orders that results in Kenya not having an ag CJ, DCJ, Supreme Court quorum, chair of JSC, when the process of recruitment of (a new) CJ has begun, and such issued in far-flung Meru Court, by a single judge, is judicial recklessness,” 

LSK Mombasa branch Chairman Mathew Nyabena opined that the orders issued by by Justice PJ Otieno is a coup against the constitution.

“We have clear provisions on how to suspend a sitting Judge. Making drastic orders ex parte casts doubt as to the motives of Judge Otieno.

Does he have pending complaints himself? If yes, he should declare,” said Nyabena also LSK coast branch Chairman.

Senior Counsel Ahmednasir Abdullahi on his part said,: “Judicial orders must always be respected and given full faith and credit but the order by Justice Otieno removing the acting CJ from office is ex facie evidence of gross misconduct and a willful premeditated act of judicial skullduggery on the part of Justice Otieno.”

Though, there have been numerous attempts to stop the DCJ from discharging her functions all the attempts have failed, including a petition by activist Okiya Omtatah seeking to stop her from becoming the acting CJ following the retirement of Chief Justice David Maraga on January 12.

Omtatah wanted the DCJ  stopped from taking over as Acting Chief Justice until JSC cleared her of the allegations of corruption and abuse of office contained in the four petitions filed against her.  

Yesterday the lawyers and constitutional experts criticized the said order saying cases at the Supreme Court are likely to suffer delay due to quorum hitch.

Among those to be affected include the fate of a case challenging the legality of the Building Bridges Initiatives (BBI) bill 2020 currently before the Supreme Court is in limbo.

On February 9, Supreme Court which is now starved of quorum was set have a conference court ruling on Building Bridges Initiative (BBI) cases filed by Makueni Governor Prof Kivutha Kibwana and County Assembly Speakers Dominic Rono (Kericho) and Joshua Kiptoo (Nandi).

Lawyer Waikwa Wanyoike told People Daily that the case cannot proceed without the DCJ as the Supreme Court will not have quorum.” 

“There are BBI court cases on signature collection and verification. Still to be heard.

There are cases challenging county assemblies’ process where the constitutional bill is waiting.

Awaiting hearing. Now no quorum at the Supreme Court. Shall Wanjiku have her day in court?, Makueni Governor Prof Kivutha Kibwana posed.

“Justice PJ Otieno has executed a Coup d’état against the Judiciary by beheading the Supreme Court,” he added.

The court’s decision came after the petitioner through lawyerMarius Maranya, claimed the Deputy CJ is unfit to hold public office. 

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