Haji fights decision to let Mwilu off the hook

Director of Public Prosecutions Noordin Haji. PHOTO | FILE | NATION MEDIA GROUP 

In Summary

• Justice Mwilu had challenged the planned prosecution, saying the allegations against her were pure commercial transactions concluded in the normal course of the banking relationship between her and the bank.
• She said the matter had no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI were an abuse of power and arbitrary exercise of authority.

   

By SAM KIPLAGAT
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The Director of Public Prosecutions Noordin Haji has filed a notice to appeal a decision by the High Court, quashing charges he intended to bring against Deputy Chief Justice Philomena Mwilu.

In a notice filed at the High Court Monday, Mr Haji said he was dissatisfied with decision by five judges, who unanimously quashed the charges “for a limited reason” in the manner in which the evidence against her was obtained.

EVIDENCE

The judges dismissed all the grounds put forth by Justice Mwilu, challenging her prosecution, but allowed the charges to be quashed on grounds that an order used by the Director of Criminal Investigations (DCI), investigating her accounts had no bearing to the case.

“Having found, however, that the DCI illegally obtained evidence against the petitioner (Justice Mwilu) by gaining access to her accounts with IBL (Imperial Bank Ltd) through the use of a court order that had no bearing on her accounts and having found that the DCI thereby misrepresented facts and misused the court order, we have come to the conclusion that the prosecution against the petitioner cannot proceed,” said the judges.

Justice Mwilu had challenged the planned prosecution, saying the allegations against her were pure commercial transactions concluded in the normal course of the banking relationship between her and the bank.

ORCHESTRATED

She said the matter had no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI were an abuse of power and arbitrary exercise of authority.

Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyott, William Musyoka and Chacha Mwita ruled that there was a factual and legal basis to prefer the charge of abuse of office. They, however, said the matter should have been referred to the Judicial Service Commission first.

The judges said Justice Mwilu did not present any evidence to show that the charges were either instigated, orchestrated or coordinated by the Executive. They also said the charges were not defective simply because there was no complainant.

The court quashed the 13 charges after it emerged 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 IBL.

“There was no order authorising the DCI to investigate the petitioner’s accounts at IBL. The investigation into the petitioner’s accounts was not sanctioned by court, and such evidence as was obtained would appear to be illegal,” they said.