Human rights activist Okiya Omtatah wants Deputy Chief Justice Philomena Mwilu barred from assuming the role of acting Chief Justice after David Maraga’s exit.
In a case filed in court, Omtatah argues that Mwilu is not fit to act in the office of the Chief Justice when David Maraga retires in January next year.
The activist wants the court to bar the Judicial Service Commission from appointing Mwilu as acting CJ unless they clear her of all abuse of office and corruption allegations levelled against her.
He argues that currently there are four petitions before JSC seeking her removal from office.
“Pending the inter-parties hearing and determination of this case, the court be pleased to issue a temporary order prohibiting JSC from appointing DCJ Mwilu to act in the office of the Chief Justice unless and until the JSC clears her of the allegations of corruption and abuse of office contained in the pending four petitions seeking her removal,” reads Omtatah’s petition.
Maraga is expected to proceed on terminal leave on December 15 ahead of his retirement on January 15, 2021.
Omtatah asked the court to certify the matter as extremely urgent as Mwilu is expected to take over pending the appointment of a new CJ.
“For example, the Director of Public Prosecutions (DPP) and the Directorate of Criminal Investigations (DCI) claim in their petition that Justice Mwilu is unfit for public office as she was involved in the irregular sale and acquisition of property including obtaining the execution of a security by false pretence,” said Omtatah.
He faulted JSC for taking too long to determine the petitions against Mwilu.
“The petitioner is aggrieved that the JSC, which is mandated to ensure the independence, impartiality, responsibility and professionalism of the courts and judges is dillydallying and pussyfooting, and deliberately delaying to determine this matter either way,” the petition reads.
In June last year, DPP Noordin Haji petitioned to have JSC remove Justice Mwilu from office on grounds of gross misconduct, misbehaviour and breach of the Judiciary code of conduct.
Haji said that Mwilu is unfit for public office as she was involved in the irregular sale and acquisition of property including obtaining the execution of a security by false pretense.
The DPP also accused Mwilu of failure to pay taxes to the Kenya Revenue Authority, forgery and uttering a false document.
Two months earlier, Mwilu had survived prosecution over the allegations after a five-judge bench faulted the conduct of DCI boss George Kinoti stating he obtained evidence against Mwilu illegally.
In September this year, the DPP accused Mwilu of sabotaging her trial by obtaining court orders that stopped JSC from proceeding with the hearing of her case.