Director of Public Prosecutions (DPP) Noordin Haji has moved to court seeking to quash an order suspending the hearing of a petition to oust Deputy Chief Justice Philomena Mwilu for alleged misconduct, including her Sh315 million property dealings with the collapsed Imperial Bank.
Justice Mwilu was scheduled to appear before a committee of the Judicial Service Commission (JSC) — her employer — on Monday to respond to the ouster petition but instead obtained a court order stopping the planned proceedings, citing bias by two commissioners.
This has prompted a counter-application by the DPP and the Directorate of Criminal Investigations (DCI) who want to be enjoined in the matter amid claims that the Deputy Chief Justice was engaging in “mischief and treating the court to theatrics”.
“That the choice of parties by the petitioner in her application betrays one fact that she intends to personalise the matter as against some commissioners and ensure that the JSC is intimidated not to discharge its mandate under the Constitution,” secretary of public prosecutions Dorcas Oduor said in the application on behalf of Mr Haji.
She added: “That this being the position taken by the petitioner it leaves no doubt that the petitioner does not wish to be heard by the Court of Appeal or even the JSC and she is bent on ensuring that her strategy of delaying the matter ad in finito is achieved regardless of the inconvenience that all other parties may suffer.”
The High Court has certified the application by the DPP and DCI and directed that the case be heard on September 22.
Two petitions have been filed against Justice Mwilu, one by the DPP, and another by Peter Kirika, seeking her removal for alleged inappropriate contact with suspects, irregular dealings with Imperial Bank and tax evasion.
In his petition, the DPP accuses the deputy Chief Justice of tax evasion and forgery, improper conferment of a loan (benefit) and fraud (replacement of security), which he said demeans her office as well as her position as a judge.
The DPP’s petition focuses on Justice Mwilu’s dealings with Imperial Bank which saw her close land deals worth Sh315 million within three months with the help of the lender.
Mr Haji claims the deputy Chief Justice failed to pay capital gains tax on the return and stamp duty of four percent on value of the land she bought between December 2014 and March 2016 for Sh160 million.
Part of the Sh132 million in loans was allegedly granted interest-free without applications from Justice Mwilu or appraising her creditworthiness, while others were granted using letters with Judiciary letterheads.
The petition says Ms Mwilu bought two plots in Nairobi for Sh80 million in December 2014 and used them as security for a Sh60 million long-term loan. She allegedly took another short-term loan of Sh60 million for purchase of half-acre property and successfully used it as substitution of the earlier loan security, leading to release of the two plots.
She was meant to sell the two plots and use the proceeds to clear the Sh65 million short-term loan and half of the long-term loan.
The DPP says the top judge sold all the properties for Sh315 million, and only cleared the Sh65 million and failed to offer Imperial Bank property as security.
The committee of the JSC hopes to review the complaints levelled against Justice Mwilu and capture witness accounts before handing its assessment to her employer for action.
Should the JSC find merit for the deputy CJ’s removal, it would forward the petition to the Head of State who shall within 14 days form a tribunal to investigate Justice Mwilu.
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