Her battle against accusations of forgery and abuse of office in her association with the lender is pending before the Court of Appeal and at the Judicial Service Commission (JSC).
Justice Mwilu had challenged the planned prosecution, stating that the allegations against her were pure commercial transactions concluded in the normal course of the banking relationship between her and the bank.
Deputy Chief Justice Philomena Mwilu is one person to watch this year as the case of collapsed Imperial Bank resumes.
Her battle against accusations of forgery and abuse of office in her association with the lender is pending before the Court of Appeal and at the Judicial Service Commission (JSC).
Appearance before the appellate judges will be particularly poignant given that her predecessor Kalpana Rawal met her waterloo in the same court.
Justice Rawal had sought a second opinion in her bid to serve as Deputy Chief Justice up to the age of 74.
The charges which had been levelled against Justice Mwilu were quashed by a bench of five judges but Director of Public Prosecutions Noordin Haji appealed and, at the same time, filed a complaint before the JSC.
While she battles to clear her name, her colleague at the Supreme Court Jackton Boma Ojwang’ is expected to proceed on terminal leave in February, pending retirement as he clocks the retirement age of 70 years, a decision of the appellate court in the Rawal case.
Justice Ojwang’s retirement will leave the apex court with only five judges. The Constitution requires a composition of five judges for a proper sitting of the court.
In quashing the charges against the DCJ, the bench comprising of Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita ruled that an order used by the Director of Criminal Investigations (DCI) in investigating her accounts had no bearing to the case.
“Having found, however, that the DCI illegally obtained evidence against the Petitioner (Justice Mwilu) by gaining access to her accounts with IBL (Imperial Bank Ltd) through the use of a court order that had no bearing on her accounts and having found that the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” the judges said.
13 CHARGES
Justice Mwilu had challenged the planned prosecution, stating that the allegations against her were pure commercial transactions concluded in the normal course of the banking relationship between her and the bank.
She said the matter has no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI were an abuse of power and arbitrary exercise of authority.
The High Court judges, however, said the matter should have been referred to the JSC.
The DCJ was to face a total of 13 charges over transactions with the bank while she was a judge of the Court of Appeal.
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