Kenya’s top prosecutor Noordin Haji has suffered a blow in his quest to prosecute the country’s second-highest judge for alleged corruption.
The High Court on Wednesday stopped criminal proceedings against Deputy Chief Justice Philomena Mwilu and lawyer Stanley Kiima.
The judge is facing several charges of stealing, abuse of office and unlawful failure to pay taxes.
Additionally, investigators claim that the judge has acted in contravention of the Leadership and Integrity Act by accepting a personal loan of Sh12 million from Imperial Bank.
The deputy CJ is also accused of engaging in misconduct in furtherance of personal benefit.
But in her application, Judge Mwilu had argued that her alleged impropriety while handling Imperial Bank cases is purely a commercial matter and not a criminal offence.
She argued that Mr Haji was motivated by malice and his allegations are malicious.
Through senior counsel John Khaminwa and Okongo Omogeni, it was her argument that the case is “purely commercial transactions” and which were concluded.
The case, she said, is not coincidental and appears to be part of a larger scheme to embarrass her as the country’s second top judge.
In his ruling, Justice Chacha Mwita said there are constitutional issues to be addressed in the petition, especially on grounds that the matter was a commercial matter and whether it can lead to the arrest of a judge.
The question to be addressed is whether issues relating to a transaction between a party and commercial institution would lead to criminal charges.
There is also a wider question whether a judge would be said to have failed to pay for stamp duty while the lawyer who acted for her faces charges of forgery.
Therefore, there is a constitutional question to be addressed in the area of commercial law.
The case will be heard on October 9.
Meanwhile the criminal proceedings pending before the magistrate remain suspended until then.