In Summary
  • Judiciary clarified that there is no quorum hitch at Supreme Court as DCJ Mwilu and other judges facing complaints at JSC are still working.

  • There are five petitions against Supreme Court judges.

Deputy Chief Justice Philomena Mwilu is still discharging her duties despite a petition by two State agencies challenging her suitability to serve over claims of graft.

The Judiciary said Wednesday that Justice Mwilu and other judges facing complaints at the Judicial Service Commission (JSC) have not been barred from discharging their duties.

“There is no quorum hitch in the Supreme Court bench. DCJ Mwilu is not out of office. There is no bar to her sitting as a judge of the Supreme Court,” stated the Judiciary in a dispatch, adding that she has been routinely sitting and discharging her duties as a judge of the Supreme Court.

Between February 2019 and February 2020, for example, Justice Mwilu heard numerous cases, making seven judgments and 45 rulings.

The statement made reference to a communication made in May last year when JSC indicated that there were five petitions against Supreme Court judges. All the five judges continued to sit, as their matters underwent various stages of processing by JSC.

“In the meantime, there are numerous judges and magistrates across the Judiciary facing complaints or petitions pending against them at the JSC. They continue to serve Kenyans, sit and hear matters without any adverse mention in the media, pending the determination of their matters by the JSC,” said the Judiciary.

According to article 163 (2) of the Constitution “the Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.”

This means that even with the exit of Justice Jackton Ojwang this month, owing to retirement, the court is still properly constituted to conduct business with six judges.

Chief Justice David Maraga is also expected to retire in January 2021 upon attainment of 70 years.

“There is no quorum crisis in the Supreme Court. The court is operating normally and firmly on course in discharging its mandate,” the Judiciary said.

JSC was scheduled to hold a full sitting Wednesday but, by the time of going to press, it had not communicated about the details of the meeting and its possible outcome.

Efforts to get a communication from the commission’s Secretary Anne Amadi and the Judiciary communications officer were futile as they failed to respond to phone calls or text messages.

Last year, the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations (DCI) filed the petition against Justice Mwilu.

DPP Noordin Haji filed the petition at the JSC after a five-judge bench thwarted his attempt to charge Ms Mwilu in court on claims of criminal conduct.

Justice Mwilu survived possible prosecution last May after the High Court ruled that the DCI had obtained evidence against her illegally by invading her privacy.

Mr Haji claims Ms Mwilu is unfit to hold public office for failure to pay taxes to the Kenya Revenue Authority, forgery and uttering a false document.

She was accused of involving herself in irregular sale and acquisition of property, including obtaining the execution of a security by pretence.