Mwilu case: Why DPP wants CJ Maraga to appoint three-judge bench

Director of Public Prosecutions Noordin Haji wants a case against Deputy Chief Justice Philomena Mwilu referred to the Chief Justice for the formation of a three-judge bench to hear the matter.

Lawyers representing the DPP led by Dorcas Oduor say the case against DCJ Mwilu raises weighty and complex issues and needs to be addressed by a three-judge bench.

The embattled Deputy Chief Justice is facing various counts among them abuse of office and forgery.

In his submission, the Attorney General, through Solicitor General Kennedy Ogeto, says the case against Mwilu raises weighty issues such as whether a sitting judge should be prosecuted, if a judge can be removed from office after commencement of a case and whether the prosecution can proceed to institute criminal proceedings.

The AG also wants queried whether the criminal prosecution of a judge amounts to encroachment of independence of the judiciary

“We may have answers but these are issues that are contested and noble and these are issues that are of great public importance. These issues meets the threshold to have the matter be heard by a three judge bench,” said Mr. Ogeto.

He added: “This is a matter that fits to be heard by uneven number of judges.”

However, one of Mwilu’s lawyers Okongo Omogeni has opposed the application to have the matter referred to the chief justice.

“From the petition filed before you the issue for determination is whether the DPP is abusing his powers by trying to criminalise a commercial issue,” said Mr. Omogeni.

Justice Mwilu is charged that between August 15, 2013, and October 23 the same year at Imperial Bank Headquarters in Westlands, she used her office as a Judge of the Court of Appeal to improperly confer a benefit of Ksh.12 million to herself.

She is further accused of unlawful failure to pay taxes payable to the Kenya Revenue Authority (KRA) contrary to section 45(1)(d) as read with section 48 of the Anti-Corruption and Economic Crimes Act 2003.

More to follow…