A three-Judge Bench has quashed the petition lodged by Director of Public Prosecution and Directorate of Criminal investigation against Deputy Chief Justice Philomena Mwilu at the Judicial Service Commission.
Justices Said Chitembwe, Roselyn Aburili and Weldon Korir on Friday ruled that DCI and DPP cannot petition the JSC for the removal of the DCJ or any judge from office since they are state officers.
“Allowing them to petition the removal of a judge from office violates the doctrine of separation of power,” ruled Justice Chitembwe.
According to the Judges, the two are state officers occupying state offices, and they cannot fit the description of any person.
“In their official capacity they are distinct from the members of the public, DPP exercises state power of prosecution whereas the DCI is mandated to carry out criminal investigations,” the Judges ruled.
The three other petitions that also seek the removal of DCJ Mwilu have been suspended pending the outcome of the court of Appeal decision, which challenges the High court verdict that halted Mwilu’s prosecution.
Mwilu filed the petition against JSC disciplinary committee investigating her for gross misconduct after four petitions were filed against her.
Through lawyer Julie Soweto in August this year, she argued that the four petitions pending against her before the Judicial Service Commission were informed by malice.
The DCJ argued that the manner in which the case was handled violates the right to fair administrative action and the right to a fair hearing by an impartial and fair tribunal.
JSC through lawyers Lynn Nyangweso and Charles Kanjama however asked the court to dismiss the suit, claiming that she failed to exhaust all the available mechanisms of dispute resolution before approaching the court.
According to the two lawyers, Justice Mwilu ought to have let the proceedings before the JSC be completed before she could approach the court for remedy.
The three-Judge Bench however ruled that she had the right to institute the proceeding if she felt her rights had been violated.
DPP had charged Mwilu with corruption-related charges, but a five-judge bench quashed the said criminal proceedings on May 31, 2019.