The High Court has declared that DCJ Philomena Mwilu will not be prosecuted as the evidence by the DCI was illegally obtained.
The five judge bench has subsequently quashed the criminal case on that ground.
The bench said the DCI violated Mwilu’s right to privacy by the manner in which it obtained its evidence by accessing her IBL accounts.
“DCI’s way of obtaining the evidence has irredeemably rocked the foundation in which the charges stand,” they held.
The prosecution said it will appeal the decision.
The judges however held that there was factual and legal basis for initiating of the charges and they were not defective for lack of a complainant as the republic is also a proper complainant.
The bench said it cannot fault the DPP’s decision to prosecute, but held the manner in which the DCI obtained its evidence was detrimental to administration of justice.
The five-judge bench that heard the case in March this year was to determine whether the DPP can institute criminal proceedings when the Judicial Service Commission has taken no action against a sitting judge.
The JSC’s inaction was despite knowledge and information about the alleged criminal conduct of the judge.
Also to be determined was whether the criminal prosecution of a sitting Supreme Court judge amounts to encroachment on the independence of the Judiciary.
Also in question was whether DPP Noordin Haji could lawfully fail to commence criminal proceedings against a sitting judge without violating the Constitution.
Last year, Mwilu obtained High Court orders stopping her prosecution.
The charges facing her related to credit transactions between her and Imperial Bank Limited and an alleged failure to pay stamp duty on four properties she purchased between 2014 and 2016.
The bank is under receivership. Mwilu also faced charges of abuse of office, unlawful failure to pay taxes to KRA and forgery.
The DCJ has on numerous occasions said that the criminal charges sought to be pursued by the DPP arise out of three commercial lending transactions in the course of normal banking relations between her and the Imperial Bank of Kenya.
She said there are remedies other than her prosecution. The DCJ says there was malice and ulterior motives in deciding to charge her.
Mwilu was represented by lawyers Nelson Havi and James Orengo.
The justices are William Musyoki, Mumbi Ngugi, Hellen Omondi, Francis Tuiyott and Chacha Mwita.