, NAIROBI, Kenya, Jun 26 – A law student from the University of Nairobi has written to the Judicial Service Commission (JSC) seeking to block three High Court judges from being considered for Court of Appeal jobs over their recent decision to bar the prosecution of Deputy Chief Justice Philomena Mwilu.
Zack Kinuthia now wants the JSC stopped from declaring the results of the interviews for Justices Mumbi Ngugi, Francis Tuiyott, and Hellen Omondi seeking to be appointed as court of appeal judges.
The commission interviewed Justice Ngugi on June 12, Tuiyott on June 17 and Omondi on June 24 for purposes of filling vacancies in the court of appeal.
Kinuthia said on Wednesday that he wrote a letter to the commission in opposition to the candidature of the said judges.
He argued the three neglected to exercise their judicial functions with due diligence, resulting in gross misconduct.
“In the said judgment, despite establishing that the Director of Public Prosecutions acted within the law, the judges went on a fishing expedition with the exclusive intention of looking for ways to ensure Mwilu could not stand trial,” he wrote.
On May 31, a five-judge bench consisting of Mumbi, Tuiyott, Omondi, William Musyoka and Chacha Mwita ruled that Mwilu will not be prosecuted over corruption and abuse of office charges on grounds that the Director of Criminal Investigations obtained evidence illegally.
Kinuthia said the bench erred in its decision in finding that the DCI violated the Mwilu’s right to privacy by obtaining and using a court order that had no bearing to the case to look into her bank accounts at the collapsed Imperial Bank Limited (IBL).
“The conduct of the DCI has irredeemably rocked the foundation on which the charges stand,” the bench ruled on May 31.
Kinuthia said the finding was fatally defective in view of the fact that the infringement of the right to privacy was never pleaded by Mwilu.
“Prior to deciding to delve into an issue that had not been pleaded, the bench should have invited the parties to make submissions on the same instead of making dangerous assumptions,” he argued.
“This untidy situation would have been avoided if the bench which included the three candidates, exercised its judicial functions in strict conformity with the constitution and the judicial code of conduct,” Kinuthia stated.
He argued that the three candidates breached rule 4 (3) of the Judicial Code of Conduct and Ethics 2016 which provides that a judge shall not deviate from the law to appease people, to avoid criticism.
“The judges’ determination was calculated at ensuring a specific outcome in spite of glaring facts of law that would have seen the matter determined otherwise, if they were impartial and true to their oath of office,” he said.