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Director of Public Prosecutions (DPP) Noordin Haji has filed an application seeking to set aside  an order barring disciplinary proceedings against Deputy Chief Justice Philomena Mbete Mwilu.

Haji is challenging the order issued by High Court judge Weldon Korir on August 17 after a successful application by the DCJ that stopped the Judicial Service Commission (JSC) from instituting disciplinary proceedings against her.

In an application filed under certificate of urgency, the DPP accuses Lady Justice Mwilu of using different means to delay the case against her.

“If at all she had any misgivings about JSC’s capacity to do justice, nothing would have been easier than for her to halt the process before JSC and allow the appeals to proceed if at all in her view that is the forum she would have secured justice, ” the suit papers filed by DPP read in part.

Mwilu had opposed JSC’s hearing saying that two of the commissioners; Attorney-General Kihara Kariuki and Macharia Njeru are biased.

The commission, however, dismissed the bias claims, a situation which forced her to move to the High Court.

The State now says that because she chose to have the matter considered by the JSC, Mwilu cannot be allowed to abandon the process before the commission or be allowed to move to court to obtain ex parte orders without enjoining DPP as an interested party. 

The Court was further told that the challenge by DCJ Mwilu is an afterthought and an act calculated to convolute the matter since.

“The petitioner/respondent (Mwilu) therefore has been indolent, and cannot therefore, be assisted by this court for equity does not assist the indolent but those that are vigilant in their quest for justice.”

Haji says that Justice Mwilu, despite knowing that his office is a necessary party with sufficient legal interest in the suit, failed to enjoin him.

The Prosecution accused the DCJ of failing to disclose material particulars to the court, which would have enabled it to arrive at a different decision.

 “She is guilty of misrepresentation of facts, and must therefore not be allowed to drink from the pure waters of equity,” the suit papers add.

Criminal case

According to DPP, Mwilu failed to disclose the fact that on August 31, 2020, the JSC was scheduled to hear a preliminary objection by Justice Mwilu to a case filed by State.

 A five-judge bench had held that if indeed the DPP wanted to pursue Mwilu for the allegations giving rise to criminal case, he should first file a case before the JSC before filing a criminal case.

According to the State, pursuing the petition before JSC will only deal with disciplinary aspect and not the criminal justice process thus the two cases should run simultaneously.

The appeal was stopped awaiting the determination of the proceedings before the JSC.

The continued pendency of proceedings against DCJ reflects negatively on the image of the judiciary as a whole because by virtue of her position she continues to sit in the JSC proceedings to hear and determine disciplinary cases against other judges while