The hearing of a case in which Deputy Chief Justice Philomena Mwilu is challenging graft allegations levelled against her began on Tuesday.
Her lawyers, led by Mr James Orengo, argued that the allegations should have been taken before the Judicial Service Commission (JSC) before being handled by the Directorate of Criminal Investigations.
Mr Orengo told the court that there was no evidence to support the claims and that Justice Mwilu’s prosecution was instigated by malice.
He further argued that the accusations were of a civil nature yet the matter was being treated as criminal.
“The Director of Public Prosecutions, having instigated the charges, went on a fishing expedition to find dirt on Ms Mwilu and hence ended up criminalising a civil matter,” said Mr Orengo.
The case is being heard by a five-judge bench of Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita.
DCJ Mwilu moved to the High Court to challenge her criminal prosecution following a recommendation by the DPP for her to be charged with obtaining execution of a security belonging to Imperial Bank Ltd by false pretence.
She is also set to be charged with abuse of office, accepting a monetary gift in circumstances that undermined public confidence in her office, failing to pay taxes and disregarding the law.
Ms Mwilu is facing a total of 13 counts, seven of which relate to failing to pay about Sh 12 million stamp duty to the Kenya Revenue Authority. She allegedly committed the offences between 2013 and 2016.
However, the DCJ has not taken a plea and was released on a Sh5 million police bond after she was arrested in 2018.
On Tuesday, the judges asked her lawyers to tell the court whether it was acceptable for the DPP to exempt judges from being charged, and whether this would be seen as abuse of office.
But they reiterated their stand, arguing that complaints levelled against judges should be addressed by the JSC before a criminal process is initiated.
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