, NAIROBI, Kenya, May 31 – Deputy Chief Justice Philomena Mwilu has survived prosecution over graft allegations after a five-judge bench faulted the conduct of the Director of Criminal Investigations George Kinoti “for obtaining evidence against her illegally.”
Mwilu had urged the court to quash the impending criminal charges, arguing that the DPP has no legal basis to prosecute her.
The court questioned how the DCI obtained evidence regarding her bank accounts at Imperial Bank.
“As a result, we find the case against the petitioner cannot proceed,” the five judges ruled.
They ruled that the DCI unlawfully obtained evidence against her bank account using a court order that had no bearing.
“This we find violated her right to privacy and is irredeemably unlawful as it forms the bedrock of the dispute,” they ruled.
The judges also ruled that for the charge of abuse of office Mwilu faced the DCI should have notified Judicial Service Commission at the first instance.
“To allow such misconduct against a judicial officer without initial recourse to the JSC would expose judges or judicial officers to harassment by the executive and police,”
The judges however refused to acknowledge that she was charged as a result of President Uhuru Kenyatta’s remark after the 2017 election that “we shall revisit.”
They said it wasn’t in the place of court to determine what President Kenyatta meant.
The court found that the President’s comments can be taken out of context to achieve what one wants to.
The DCI and DPP were also found to have acted without external influence since there was no evidence to show that there was connivance between the two.
Mwilu did not however demonstrate that her arrest by police was inhuman and an embarrassment.
The judges found that police arrested her in accordance with the law and did not in any way subject her to public humiliation.
The DCJ was being accused of fraud, bribery, abuse of office and related charges.