Crisis averted in the Kenyan judiciary – for now at least

Kenya’s deputy chief justice, Philomena Mwilu, has been under pressure since she was arrested and charged in connection with corruption and tax related offences in 2018. But that has only increased since former chief justice, David Maraga, left office to take leave, pending retirement, late last year. Early in January 2021, an application, ultimately unsuccessful, was made for her to be prevented from taking over as Acting Chief Justice. And last week, a different application was granted, on an interim basis, for a similar order. As a result, she was temporarily suspended as Deputy Chief Justice, as a member of the supreme court and as part of the Judicial Service Commission. Initially, it seemed the court’s order would throw the judiciary into disarray, but that order was quickly set aside following an urgent application just a couple of days later.

Just a fortnight after one high court judge threw out an attempt to suspend Kenya’s Acting Chief Justice, Philomena Mwilu, another judge did exactly that – and more.

High court judge Patrick Otieno sent shockwaves through the judiciary and the legal profession when, on January 29, he granted several temporary orders against the beleaguered deputy chief justice, Judge Mwilu. She is also currently acting as chief justice pending the appointment of a new candidate to fill the post vacated by former CJ David Maraga last month.

The order given by Judge Otieno, suspended her from her substantive position of DCJ, as a member of the supreme court and from playing any part in the Judicial Service Commission.

‘Censured’

The matter had been due back in court much later this month, however, the very next day, lawyers prepared a set of papers asking that the orders against Judge Mwilu be set aside.

According to the argument put up to the court, the applicant before Judge Otieno had failed to disclose ‘relevant and material facts’ and he ‘ought to be censured’. The legal team arguing that the suspensions be lifted said that because the orders were granted ex parte against Judge Mwilu, they ‘constructively condemn [her] unheard’. They also ‘unilaterally strip her of her guaranteed constitutional rights and fundamental freedoms’ as well as her security of tenure and also went beyond the jurisdiction of the court that had granted the orders.

‘Embarrassment’

The petition brought to suspend the judge would lead ‘to the embarrassment of the court and the judiciary’, the lawyers said.

Although no documents are officially available in connection with either matter – both the petition and temporary order granted on 29 January and the counter application, granted on 1 February, for the orders to be set aside and the case to be moved – it appears that the matter discharging the orders came before the same judge who had granted the suspension orders, Judge Otieno, and that case has now been transferred from the Meru to the Nairobi courts to be dealt with.

President of the law society of Kenya, Nelson Havi, welcomed the new development. Earlier, commenting on the suspension orders, he said that no high court judge had the power to suspend a judge of the supreme court. A judge ‘cannot issue an injunction restraining another judge from acting.’

Congratulated

In the wake of the action that led to the suspension orders being lifted he congratulated the lawyers who had brought the challenge. He said the new litigation meant that the ACJ could do her work ‘without disobeying a “court order”’. It would also mean that the supreme court would be ‘able to function’ – this is a reference to the fear that because the ACJ was temporarily barred from sitting on the supreme court it would be left without a quorum. Moreover, Havi tweeted, the judiciary would now not be ‘headless’.

He also said that lawyers should speak out against ‘this obvious attack on the judiciary’. Havi and other observers have linked the charges against Judge Mwilu and the more recent attempts to prevent her from doing her normal administrative and court work, saying they are part of a hit back by the government in retaliation for the supreme court’s decision overturning the national elections of 2017.

Havi’s view was that the ‘public uproar’ that followed Judge Otieno’s original orders suspending Judge Mwilu from her work was not expected by those who had originated the ‘scheme’ against her, and that it was thus unsurprising that the court had decided to discharge the order.