Fate of Mwilu's career spanning 34 years hangs on scales of justice

A loan account at a troubled bank and a recalled collateral appear to be part of a recipe that investigative agencies wanted to start cooking bitter trouble for one of the country’s top judges.

Deputy Chief Justice Philomena Mwilu. FILE PHOTO | NMG 

IN SUMMARY

  • Lady Justice Philomena Mwilu has denied allegations of stealing, abuse of office and unlawful failure to pay taxes - noting that dragging her into court for a civil water is malicious.

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A loan account at a troubled bank and a recalled collateral appear to be part of a recipe that investigative agencies wanted to start cooking bitter trouble for one of the country’s top judges.

Lady Justice Philomena Mbete Mwilu, Kenya’s deputy chief Justice and the subject of legal high drama this week, has denied the allegations, noting that dragging her into court for a civil water is malicious.

But her trial at the lower court had Kenyans talking this week, even after it was put on hold by High Court judge Richard Mwita following her application.

It is a case that promises to be a litmus test for a chequered career spanning three decades and which has placed her just one step away from the apex of Kenya’s judiciary.

Ms Mwilu, who was first admitted as an advocate of the High Court of Kenya in 1984, took over as Deputy Chief Justice on October 28, 2016.

She practised in various private law firms for the first seven years of her career before joining the corporate world.

Ms Mwilu served as the deputy chairperson of the Energy Tribunal and later as director on the board of the Nairobi Water and Sewerage Company, among other assignments.

After a fruitful sojourn in the corporate world, she was appointed a puisne judge in 2007. Within the judiciary, she served in the Commercial Division of the High Court in Nairobi and later the High Court in Eldoret.

She returned to Nairobi where she served at the Criminal Division and later headed the Environment and Land Division of the High Court.

Justice Mwilu was in November, 2012, elevated to the Court of Appeal where she served until her appointment as the Deputy Chief Justice.

Last year in May, she was elected by Supreme Court judges to represent them in the Judicial Service Commission.

She also serves as the judiciary Ombudsman and the chair of the Implementation Monitoring Committee of the Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017 – 2021, the Honourable Chief Justice’s five year strategic blueprint for the institution.

“She has passionately stood up as a role-model for the girl child and has actively mentored many girls and boys in secondary schools across the Republic of Kenya by visiting their institutions and giving much needed guidance,” reads her profile on the judiciary website.

It also paints a picture of a God-fearing servant who participates actively in church activities.

But the career she built over the years is under threat from the charges facing her.

When she arrived in court on Tuesday as a suspect, she cut a pensive figure. She watched as lawyers, numbering over 30, defended her. Here was a judge serving on the bench of the most senior court fighting to save herself before a magistrate’s court.

The counsel successfully fought to secure her freedom for that night and the following day they got an order from the High Court suspending the trial, pending hearing of the case she filed at the High Court.

She is accused of failing to pay taxes and unlawfully obtaining securities charged at the Imperial Bank by “pretending that she would provide an alternative security.”

But she denies any wrongdoing, noting that the issues raised are purely customer-client matter and of civil nature not criminal.

Her lawyers asked why the DPP was using the Director of Criminal Investigations instead of the Ethics and Anti-Corruption Commission which has the legal mandate to investigate such cases.

But even as she fights in court, this development is viewed through different lenses. Justice Mwilu was among the judges who nullified the election of President Uhuru Kenyatta last year and ordered a fresh poll.

READ: Philomena Mwilu deals Noordin Haji a blow in court battle

Shortly after the nullification of his victory, President Kenyatta declared he would “revisit the Judiciary” after the presidential elections which he won as the main opposition party boycotted.

But the DPP, Mr Noordin Hajji, when asked if he was being used to revisit the issue by a journalist, said he was independent and not acting on instructions from any other person or institutions.

It would be a painful ending of a career for the judge if she is removed from office after 34 years in the field of law, 12 of which she has worked as a judge.

Article 168 of the constitution spells out the process of removing a judge from office, with some of the grounds spelled out being inability to perform functions, breach of a code of conduct, bankruptcy, incompetence, gross misconduct or misbehavior.

JSC can initiate removal on its own motion or on a petition by any other person. It can send the petition to the President if it satisfied that it discloses enough grounds.

The President shall within 14 days after receiving the petition suspend the judge from office and appoint a tribunal which will make its recommendations after investigations.

The judge is entitled to half salary until removal from or reinstatement.

Justice Mwilu becomes the first top judicial officer after the new constitution was enacted to face graft charges. But at this point, opinion is divided on the issue. She remains innocent until proven guilty.

But it is clear she is not ready to allow this to derail her otherwise impeccable career. Only time will tell if she will succeed or not.

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