Deputy Chief Justice Mwilu Under Siege

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By Kenya Confidential Legal Affairs Editor, Nairobi – July 9, 2019

Kenya’s Deputy Chief Justice Philomena Mwilu is a woman under siege. After a ridiculously desperate effort by a High Court 5-member bench to pull her out of the hook over corruption charges, she may soon realise that Corruption does not pay.

The Judicial Service Commission (JSC) her employer, met on July 8, to consider two petitions seeking her removal for misconduct, including her Ksh 315 million property dealings with the collapsed Imperial Bank.

One petition has been filed against Justice Mwilu, by the Director of Public Prosecutions (DPP), Noordin Haji, and the other by a member of the public Peter Kirika.

They want Kenya’s second senior-most judge removed from office for inappropriate contact with suspects and irregular dealings with Imperial Bank and tax evasion that amounted to inappropriate conduct of a judicial officer and abuse of office.

A committee will look at the complaints and call witnesses before referring the matter to the JSC along with its verdict. If JSC finds that any of the petitions discloses a ground for removal, it will send the petition to President Uhuru Kenyatta requesting him to form a tribunal within 14 days of receiving the petition to investigate Justice Mwilu further.

In his petition, the DPP accuses Justice Mwilu of tax evasion and forgery, improper conferment of a loan (benefit) and fraud (replacement of security), which he said demeans the office of the Deputy Chief Justice and a judge. Such behaviour runs counter to Chapter Six of the Constitution on leadership and integrity among criminal conduct.

“The Respondent used the prestige of her judicial office to advance the private interests of the judge contrary to clause 7(8) and (11) of the Judicial Code of Conduct which prohibit judges from financial and business dealings that tend to reflect adversely on their impartiality,” says the petition filed by Haji.

This will place her dealings with Imperial Bank, which saw Justice Mwilu close land deals worth Sh315 million within three months with the help of the lender, at the heart of the probe.

The DPP says the Deputy Chief Justice failed to pay capital gains tax on the return and stamp duty of four per cent on the value of the land she bought between December 2014 and March 2016 for Sh160 million.

Part of the Ksh 132 million in loans was allegedly granted interest-free without applications from Justice Mwilu or appraising her creditworthiness, while others were granted using letters with Judiciary letterheads.

Haji says Justice Mwilu also fraudulently recovered securities of the loans and sold them, leading to losses of Sh60 million at the collapsed Imperial Bank.

Imperial Bank went under with billions of depositors cash after aggressive marketing that attracted private and corporate customers. It is believed the collapse was owners-induced to defraud depositors of their hard-earned cash. That is a common phenomenon in Kenya’s banking and insurance industry.

Imperial Bank depositors robbed of their millions with Kenya judiciary helping hand

“The respondent (Mwilu) therefore, used her judicial office to improperly enrich herself,” the DPP says.

The petition says Ms Mwilu bought two plots in Nairobi for Ksh 80 million in December 2014 and used them as security for a Ksh 60 million long-term loan. She took another short-term loan of Ksh 60 million for purchase of half-acre property and successfully used it as substitution of the earlier loan security, leading to release of the two plots.

She was meant to sell the two plots and use the proceeds to clear the Sh65 million short-term loan and half of the long-term loan. The DPP says the top judge sold all the properties for Ksh 315 million, and only cleared the Ksh 65 million and failed to offer Imperial Bank property as security.

Haji has also appealed a decision by a 5-bench High Court judges verdict stopping charges he intended to bring against Mwilu. The judges’ action was a direct slap on President Uhuru Kenyatta Fight against Corruption, which has made judicial officers amoing the richest public officers in Kenya.

In a notice filed at the High Court Monday, Haji said he was dissatisfied with a decision by the bench of five judges, who unanimously quashed the charges he had laid against Mwilu, citing the manner in which the evidence against Justice Mwilu was obtained as “illegal”.

The judges found that the Directorate of Criminal Investigations (DCI) obtained the evidence by gaining access to the Deputy Chief Justice’s accounts at the collapsed Imperial Bank Ltd using a court order that had no bearing on the accounts and thereby misrepresenting facts.

Justice Mwilu was arrested last August on suspicion of corruption, failure to pay tax and improper dealings with Imperial Bank that was later placed in receivership.

In his notice of appeal, the DPP maintains that all their evidence was collected using properly issued court warrants. Haji says Mwilu had abused her office for personal gain, undermining public integrity in the judiciary.

“If the court had called on all the parties, we could have evidence before them that we had all the warrants issued in relation with the investigations of the suspect’s accounts,” he said.

In early 2018, the government launched a new anti-graft push led by Haji, a former deputy head of the National Intelligence Service, who has since brought criminal charges against dozens of civil servants and business people

Justice Mwilu had challenged her planned prosecution, arguing that the allegations against her were pure commercial transactions, concluded in the normal course of the banking relationship between her and the bank. The actions of the DPP and the DCI, she said, amounted to abuse of power and arbitrary exercise of authority.

The court quashed the 13 charges after it merged that the DCI got an order to investigate an account at KCB, relating to Blue Nile East Africa Ltd. But as the officers investigated the account, they stumbled on information that led to Justice Mwilu’s accounts with Imperial Bank.