The High Court has declined to stop Deputy Chief Justice Philomena Mwilu from assuming the role of acting Chief Justice.

Justice Antony Mrima dismissed the application filed by activist Okiya Omtatah, which sought to stop her from taking over as acting Chief Justice until the Judicial Service Commission (JSC) cleared her of allegations of corruption and abuse of office contained in the four petitions filed against her.

According to Justice Mrima, the application by Omtatah was premature as none of those petitions had been determined.

“Based on the pleadings and the Petitioner has not established a prima facie case and the notice of motion is, therefore dismissed,” ruled Mrima.

The judge noted that Mwilu is presumed innocent until the contrary is proved.

Mrima, however, allowed Omtatah to amend his petition.

Retired CJ David Maraga handed over instruments of power to Mwilu Monday. She is expected to perform the Judicial functions until a substantive Chief Justice is appointed.

In response to Omtatah’s application, the Mwilu argued that complaints against judges are received by JSC all the time and the mere existence of any such complaints does not bar judges from discharging their constitutional judicial or administrative functions.

“My case cannot be any different. A judge’s personal integrity does not diminish or end nor does the judge cease being suitable to continue serving on account of pending complaints about the removal,” she had said in her affidavit.

Mwilu

further claimed that as Deputy head of the Judiciary, she has performed the very functions notified to her by the Chief Justice via his letter of December 11, 2020, whenever he was away.

According to the DCJ, the functions of JSC in so far as judges are concerned, are limited to the recommendation for appointment and removal of a Judge.

Public interest

“ The functions do not include the appointment of an acting Chief Justice or allocation of judicial or administrative duties and functions of the Chief Justice…JSC does not appoint one acting Chief Justice and cannot, therefore, be prohibited from undertaking a function not given to it,” she argued in court documents.

Mwilu also argued that it is not lawful or in the public interest for the Kenyan public to be denied the benefit of the administrative duties and functions of the Chief Justice, which she is entitled to perform in an acting capacity on account of complaints before JSC that have not culminated to her suspension or removal from office.

Omtatah, in his suit papers, had claimed that designating the DCJ, as the acting Chief Justice was unconstitutional given that it allows the DCJ to exercise full powers of the Chief Justice yet the appointment was done through a process, which is not constitutionally permissible.

According to Omtatah, there is no constitutional requirement that the outgoing Chief Justice should recommend a person for appointment as acting Chief Justice.

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