, NAIROBI, Kenya, Aug 31 – Nairobi Anti-Corruption Court Magistrate Lawrence Mugambi has halted criminal proceedings against Deputy Chief Justice Philomena Mwilu following a stay order by the High Court.
According to the order issued by Justice Chacha Mwita of the Constitutional and Human Rights Division of the High Court, Mwilu will argue out her petition challenging charges levelled against her at the Magistrate’s Court from October 9.
“In compliance with the said order, this court directs that these proceedings rest at the point they had reached,” he directed on Friday.
Mugambi gave Mwilu’s co-accused, Staley Muluvi, until Tuesday next week to present orders staying his prosecution, which he said he had obtained but was yet to serve the court.
The magistrate retained the status quo with regard to bond and related orders he had issued earlier pending an appraisal on the High Court proceedings on October 22.
“There shall be a mention before this court, for purposes of appraising or updating this court on ant further directions from the High Court in respect of this criminal case pending before this court,” he ordered.
The Friday ruling came as a reprieve to Mwilu who would have been charged should her lawyers have failed to extract the High Court orders secured after filing an application on Wednesday.
The magistrate had adjourned the court on Friday morning giving Mwilu’s lawyers led by Senator James Orengo until noon to retrieve the stay orders from the High Court.
Mwilu plea-taking had initially been slated for Wednesday but developments from the High Court compelled the magistrate to halt the case awaiting stay orders.
While postponing the matter to Friday, Mugambi had upheld a Sh5 million personal bond which Mwilu executed on Tuesday when she was arraigned before the magistrate court following her arrest earlier in the day.
Mwilu’s release on bail afforded her an opportunity to attend a Judicial Service Commission (JSC) meeting on Thursday which meeting would have fallen short of a requisite quorum of six should she have been unable to attend.
During the meeting, the ensuing legal battle over the intended prosecution of Mwilu evaded the agenda amid speculation on quorum hitch.
The speculations became more apparent with the possibility of Mwilu’s case being referred to the JSC a scenario that would have forced her to recuse herself from the JSC plenary.
Should Mwilu recuse herself under the current circumstances JSC would suffer a devastating blow with its current membership of six falling to five.
According to a source who spoke to Capital FM News, the JSC meeting chaired by Chief Justice David Maraga did not discuss Mwilu’s arrest on Tuesday and her impending prosecution as it was a matter before court.
The JSC which was attended by all the six serving commissioners including Mwilu however discussed the delayed gazettement of Justice Mohammed Warsame as a member of the Commission.
Warsame’s gazettement had been held in abeyance due to a row between the National Assembly and JSC as the former insisted that he had to be vetted by a departmental committee before being sworn as a member of the Commission.
Justice Chacha Mwita of the High Court however ruled in July that the National Assembly had no role in the vetting of Warsame who was elected by colleague judges to represent the Court of Appeal in the JSC.
The ruling cleared the way for Warsame’s gazettement and swearing which is critical to bolstering the quorums of mandatory JSC meetings and save the Commission from a paralysis should any of its current six members be removed from office.
The Judicial Service Act (2011) sets the quorum for a JSC meeting at six with its sub-committees required to have at least three members whenever they convene.
The Act further requires JSC Chairperson to convene a meeting at least once every three months.
Senior Counsel Ahmednassir Abdullahi had warned of a constitutional crisis should the JSC face a quorum hitch.
“In the absence of a functional & lawfully constituted Judicial Service Commission (6 out of 11 members are waiting to be sworn into office) that can give lawful direction. I aver we have a crisis,” he said on Wednesday.
Other than Maraga and Mwilu, the commission membership currently comprises of Justice Aggrey Muchelule (High Court), Emily Ominde (Magistrate Court), and Mercy Deche and Prof Tom Ojienda both representing the Law Society of Kenya.
Replacements for former Attorney General Githu Muigai, ex-Public Service Commission Chairperson Margaret Kobia, Kipng’etich arap Korir Bett and Winifred Waceke Guchu are yet to be sworn.
While Muigai’s successor, Paul Kihara, has faced no legal challenge and is by law entitled to be a JSC Commissioner slot by virtue of being the Attorney General, he has not been sworn in as a JSC member.
Former Clerk of the National Assembly Patrick Gichohi is yet to be sworn in to take up slot left by Kobia when she was appointed Cabinet Secretary.
Gichohi was however alongside ex-Agriculture Cabinet Secretary Felix Koskei, and former Kenyatta University Vice Chancellor Olive Mugenda, cleared for swearing in after the High Court in July dismissed a petition challenging their nominations which had already been gazetted.
Koskei and Mugenda are set to take up the slots formerly held by Bett and Guchu who have since left the JSC.
Guchu quit the Commission following her appointment as Chief Administrative Secretary in the Ministry of Water and Sanitation in January.