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Mwilu’s impending prosecution escapes JSC agenda amid quorum hitch fears

According to a source who spoke to Capital FM News, the meeting chaired by Chief Justice David Maraga did not discuss Mwilu’s arrest on Tuesday and her impending prosecution as it was a matter before court/FILE

NAIROBI, Kenya, Aug 31 – An ensuing legal battle over the intended prosecution of Deputy Chief Justice Philomena Mwilu evaded the agenda of the Judicial Service Commission on Thursday amid quorum hitch speculation.

According to a source who spoke to Capital FM News, the meeting chaired by Chief Justice David Maraga did not discuss Mwilu’s arrest on Tuesday and her impending prosecution as it was a matter before court.

The JSC which was attended by all the six serving commissioners including Mwilu however discussed the delayed gazettement of Justice Mohammed Warsame as a member of the Commission.

Warsame’s gazettement had been held in abeyance due to a row between the National Assembly and JSC as the former insisted that he had to be vetted by a departmental committee before being sworn as a member of the Commission.

Justice Chacha Mwita of the High Court however ruled in July that the National Assembly had no role in the vetting of Warsame who was elected by colleague judges to represent the Court of Appeal in the JSC.

The ruling cleared the way for Warsame’s gazettement and swearing which is critical to bolstering the quorums of mandatory JSC meetings and save the Commission from a paralysis should any of its current six members be removed from office.

The Judicial Service Act (2011) sets the quorum for a JSC meeting at six with its sub-committees required to have at least three members whenever they convene.

The Act further requires JSC Chairperson to convene a meeting at least once every three months.

With the Tuesday arrest of Deputy Chief Justice Philomena Mwilu, JSC would have for instance fallen short of quorum for its Thursday meeting had she not been released on bail.

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Mwilu’s plea-taking over graft-related charges was halted by Nairobi Anti-Corruption Magistrate Lawrence Mugambi on Wednesday, to pave way for the High Court to clarify an order staying proceedings at the magistrate court.

Magistrate Mugambi directed Mwilu to appear before his court at 11 o’clock on Friday even as he extended a Sh5 million bond he granted Mwilu on Tuesday, securing the Deputy Chief Justice’s freedom.

Speculation has been ripe on Mwilu’s predicament with a section of lawyers arguing her prosecution could trigger a quorum hitch at the JSC given that there are only six  serving commissioners.

Senior Counsel Ahmednasir Abdullahi had warned of a constitutional crisis should the JSC face a quorum hitch.

“In the absence of a functional & lawfully constituted Judicial Service Commission (6 out of 11 members are waiting to be sworn into office) that can give lawful direction. I aver we have a crisis,” he said on Wednesday.

Other than Maraga and Mwilu, the commission membership currently comprises of Justice Aggrey Muchelule (High Court), Emily Ominde (Magistrate Court), and Mercy Deche and Prof Tom Ojienda both representing the Law Society of Kenya.

Replacements for former Attorney General Githu Muigai, ex-Public Service Commission Chairperson Margaret Kobia, Kipng’etich arap Korir Bett and Winifred Waceke Guchu are yet to be sworn.

While Muigai’s successor, Paul Kihara, has faced no legal challenge and is by law entitled to be a JSC Commissioner slot by virtue of being the Attorney General, he has not been sworn in as a JSC member.

Former Clerk of the National Assembly Patrick Gichohi is yet to be sworn in to take up slot left by Kobia when she was appointed Cabinet Secretary.

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Gichohi was however alongside ex-Agriculture Cabinet Secretary Felix Koskei, and former Kenyatta University Vice Chancellor Olive Mugenda, cleared for swearing in after the High Court in July dismissed a petition challenging their nominations which had already been gazetted.

Koskei and Mugenda are set to take up the slots formerly held by Bett and Guchu who have since left the JSC.

Guchu quit the Commission following her appointment as Chief Administrative Secretary in the Ministry of Water and Sanitation in January.

The JSC meeting on Thursday also resolved to renew Chief Registrar of the Judiciary Anne Amadi’s term when her current five-year tenure comes to an end in January next year.

Amadi was named to her current position in January 2014 replacing now Uasin Gishu Woman Representative Gladys Boss Shollei who vacated the office in October 2013 amid allegations of financial impropriety.


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