By SAM KIPLAGAT
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WALTER MENYABy WALTER MENYA
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Overzealous detectives from the Directorate of Criminal Investigations (DCI) may have given Deputy Chief Justice Philomena Mwilu a lifeline after the Constitutional Court found that they obtained evidence against her illegally.
A five-judge bench ruled that the manner in which the DCI obtained the evidence against Ms Mwilu was unlawful.
The judges said whereas the DCI is not precluded from investigating cases of misconduct with a criminal element, the court order that the agency obtained had no bearing on the case against Justice Mwilu.
“We find that the manner in which the evidence was obtained to be irredeemably unlawful because it forms the bedrock of the entire dispute,” the judges said, adding that it has been demonstrated that there was a violation of Justice Mwilu’s rights.
They said given her rank, “it is sad to imagine what would happen to an ordinary Kenyan”.
APPEAL
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But justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita dismissed the other grounds Justice Mwilu put forward, including the manner in which she was arrested, the publicity surrounding the case and how she was arraigned for corruption.
As soon as the judges finished reading the ruling that took almost three hours, Director of Public Prosecutions Noordin Haji told the Saturday Nation that he would appeal, even as he praised the judges for vindicating his office on the decision to take Ms Mwilu to court.
“We respect the decision, but we are going to appeal because we believe the issue of how the evidence was obtained is a trial-court matter. In any case, this was a bank that had collapsed and we had a blanket approval to investigate what transpired,” Mr Haji said.
He was happy that the judges found his office did not violate any law in prosecuting Justice Mwilu. “The judges said we have the powers and we did not do anything unconstitutional,” he added.
CHARGES
Justice Mwilu was arrested on August 28, 2018. She was arraigned for abuse of office, forgery and failure to pay taxes, all arising from her dealings with Imperial Bank.
But she contested the charges and moved to the High Court to challenge the DPP’s decision, citing malice, not being accorded fair treatment and the manner the investigations were carried out.
According to the judges, the DCI obtained illegally the evidence that forms the substratum of the DPP’s case against Justice Mwilu.
The DCI obtained court orders to investigate the accounts of a company named Blue Nile East Africa Ltd.
The accounts were held at KCB. In the course of the investigations, detectives found links between the company’s accounts and Justice Mwilu’s.
Using the same court order, they proceeded to Imperial Bank and began looking into the judge’s accounts.
The Constitutional Court held that the DCI misrepresented itself by claiming the order to investigate Blue Nile East Africa Ltd could also apply to Justice Mwilu.
RULE OF LAW
The court then said the intended prosecution of Justice Mwilu’s conduct voided everything from the start.
The judges ruled that there was nothing unconstitutional in the decision to charge her.
In any case, the judges said, some of the charges the DPP intended to bring against Justice Mwilu were outside her professional sphere and therefore could not be dealt with by the Judicial Service Commission.
The court said judges are not immune from prosecution while in office, citing the case of Appellate Court judge GBM Kariuki, who was arrested in October 2008 for attempted murder and charged, though he was later acquitted.
The judges dismissed Ms Mwilu’s claims that she was not afforded an opportunity to defend herself before the charges were brought against her.
ABUSE OF OFFICE
In the view of the court, there are no time lines within which an accused person should be given time to respond and the opportunity granted to Justice Mwilu was adequate.
The deputy chief justice was arrested by DCI head George Kinoti and other detectives yesterday afternoon and hauled to court minutes after 5pm.
Justice Mwilu and Mr Stanley Muluvi Kiima, a lawyer, were to face 13 counts related to fraud, abuse of office, failure to pay stamp duty and forgery.
According to the DCI, Justice Mwilu conferred a benefit to herself while serving at the Appellate Court in 2013.
Prosecutors said she took Sh12 million belonging to the bank between August 15 and October 23, 2013.
But the court said the abuse-of-office charges should have been taken to the JSC first.
Justice Mwilu was also accused of obtaining security by false pretence with the intention of defrauding the bank.
FORGERY
Prosecutors said she influenced the receiver manager of the bank to discharge two titles in order to obtain a Sh60 million loan.
She will also be charged with failing to pay tax amounting to Sh3.1 million and forgery of KRA stamp duty declaration.
The judges said all other charges have no legal or factual basis. Mr Haji addressed journalists at his office.
“We are sending evidence to the JSC for action while we pursue an appeal,” said Mr Haji, who was with Mr Kinoti.
Public prosecutions secretary Dorcas Oduor and head of human rights at the Office of the DPP Alexander Muteti were also present.
BIG LOSS
Mr Haji said the court was wrong when it said the evidence was obtained illegally, adding that it was not part of the pleading sought by the defence and that he was not invited to make submissions on the matter.
“The judges also said we did not have warrants yet the issue was actually not presented in court. We would have provided the warrants if asked,” he said.
Mr Haji said he had predicted the ruling and therefore an appeal had already been prepared, “but when my officers went to file around 5pm, the registry had been closed”.
“As a lawyer you have to be prepared,” he said. Mr Kinoti said it was unfair for the court to dismiss the procurement of the evidence, adding that “it is a big loss for me, the DPP and millions of Kenyans”.
Additional reporting by David Mwere