, NAIROBI, Kenya, Oct 9 – The State now wants Chief Justice David Maraga to form a three-judge bench to hear the corruption case facing his deputy Philomena Mwilu.
Deputy Director of Public Prosecutions Dorcas Oduor says the matter raises substantial constitutional issues of law that warrant determination by a three-judge bench.
She stated that also raises questions of public importance that have never been determined by the courts.
“Article 165 (4) of the Constitution provides that the Chief Justice shall empanel an uneven number of judges. Further, if you look at the authorities that have been provided, the judges have held the position that they can determine such cases without referring anything to the Chief Justice,” she said.
“…Whether criminal proceedings can be instituted against a sitting judge of a superior court and whether it is connotationally necessary to remove the judge from office before the commencement of a prosecution.”
Solicitor General Ken Ogeto also pointed out that a bench will be in a better position to determine whether criminal proceedings can be instituted against a sitting judge of a superior court.
“The power that you are being asked to exercise is constitutionally underpinned at Article 165 (4) and this section states that a matter shall be certified, fit for hearing by an uneven number of judges if the court is satisfied that matter raises a substantial question of the law,” he stated.
Mwilu’s lawyer Okong’o Omogeni however opposed the application and instead accused the DPP of abusing his powers and court process to achieve an ulterior motive.
“The first respondent is abusing his constitutional powers by trying to criminalise civil/commercial transactions for purposes extraneous to criminal justice. That is the issue before the court. In abuse of power and court process, the first respondent is trying to use the criminal justice to achieve an ulterior motive,” he pointed out.
Mwilu had sued the State as she sought to stop criminal proceedings instituted against her is currently ongoing at the High Court.
In her application, Mwilu sued Director of Public Prosecutions Noordin Haji, Director of Criminal Investigations George Kinoti, Attorney General Paul Kihara, and Anti-Corruption Court Magistrate Lawrence Mugambi over malice and attempting to embarrass her.
In the application filed by lawyer Omogeni, Mwilu said corruption-related charges levelled against her were unlawful and part of a scheme to humiliate her.
Mwilu who appeared before Magistrate Mugambi in August contended that the proceedings instituted against her had no correlation with the pursuit of criminal justice.
Her lead lawyer James Orengo raised objection to Mwilu taking plea saying the charges were ill-motivated.