September 22, 2023


Timely – Precise – Factual

How DCJ Mwilu Survived as Acting CJ after Maraga’S Retirement

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By Shadrack Nyakoe

A day after JSC received a petition seeking the removal of justice Chitembwe, the commission has been put on the radar over how it handled the petition that sought to remove Justice Patrick Otieno from office.

Justice Otieno, while sitting in Meru, shocked the whole world through a decision that constructively rendered Lady Justice Philomena Mwilu jobless.

Early this year, Otieno made a ruling that temporarily made DCJ Philomena Mwilu jobless putting Kenyans in an Awkward situation as the country’s legal fraternity remained in shock.

Mwilu was then acting as the chief justice as Justice David Maraga had gone home for a retirement.

“A conservatory order be and is hereby issued restraining Justice Mwilu’s continued occupation of the office of the DCJ, judge of the Supreme Court, member of the Judicial Service Commission and Judiciary Ombudsperson pending determination of the suit,”. Otieno ruled while sitting at a Meru Court.

The ruling received backlash from a section of Kenyans forcing a presidential hopeful Dr.Stephen Owoko to file a petition to the JSC seeking his removal from office over misconduct and integrity issues.

Now several legal minds wants the JSC to be open in a manner in which it conducts it’s hearing and the conclusions it gives at the end.

“Let the JSC listen to everything in an open and transparent manner, it needs to hear all cases against judges in a fair and transparent manner,” Said Jeremiah Wekesa.

“JSC should not dismiss cases in the most opaque manner as sometimes it fails to call or hear the petitioners,” he added.

At the time the order was made, the situation even worsened as the country had no substantial chief justice.

In the court case against Mwilu, Mr. Isiah Mbiti filed a suit against Mwilu.

The ruling led to a standstill at the supreme court to as most cases would stop due to the lack of quorum.

Most lawyers including Law Society of Kenya President Nelson Havi laughed of the ruling made by Otieno and rubbished it.

The LSK President among other things said that the orders by Justice Otieno in Meru had no effect because the law dictates on how a judge can be removed from office.

Havi said that a judge can only be suspended by the JSC.

“First and foremost, a judge is appointed by the JSC and is only suspended by the decision of the President upon recommendation by the JSC. By that alone, a High Court judge has no powers to suspend another judge sitting before the Supreme Court,” Havi said in protest of the order.

The order was letter placed aside by a Nairobi court giving Mwilu a chance to work smart.

Mwilu later got reprieve after, the high court barred the DPP and the DCI from probing her.

Legal experts now wants the JSC to act with speed and route out corrupt judges as it is the only way of safeguarding the Judiciary.

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