HON. PHILOMENA MBETE MWILU VS. DPP & 3 OTHERS (NAIROBI HIGH COURT CONSTITUTIONAL PETITION NO. 295 OF 2018
SUMMARY OF JUDGMENT
1. There was no violation of of any of Articles 27 (1) and (2), 28, 47, 50 (2) (a), (b), (c), (j) and (k) and 157 (11) with respect to decision to prosecute the Deputy Chief Justice (DCJ).
2. There was a factual and legal basis for the pressing of charges against the DCJ in Counts I and Count II.
3. Charges were not defective for the lack of a complainant as the Republic is the complainant in all criminal matters on behalf of all citizens.
4. There was no legal basis for charges brought in Counts 3, 4, 5, 6, 7, 8, 9, 11 and 12 as they related to issues of stamp duty and which the DCJ had no connection to.
5. The press statements by the DPP and the related media reports did not infringe the rights of the DCJ.
6. The decision of the DPP to press charges against the DCJ was not tainted by ulterior motives, irrationality, unreasonableness, nor illegality.
7. Judicial Immunity does not shield judicial officers from prosecution for criminal acts that are done outside their judicial office.
8. Acts of judicial officers outside their offices can be the basis of investigations and or prosecution by the Director of Criminal Investigations (DCI) and Director of Public Prosecutions (DPP) respectively.
9. While the DCI is not precluded from bringing charges against charges against judicial officers, there is a framework for dealing with matters relating to misconduct and thus such matters should at the first instance be referred to the Judicial Service Commission (JSC).
10. The charge of Abuse of Office under Count I ought to have been referred to the JSC in the first instance because the alleged actions related to the DCJ’s office.
11. The charge of Obtaining Execution of a Security by False Ptetences under Count II fell outside the DCJ’s office and could thus directly lead to prosecution without reference to the JSC.
12. The DCI illegally obtained evidence thereby infringing on the DCJ’s Right to Privacy and thus the charges have no legal foundation.
13. Evidence underpinning the prosecution was illegally obtained in a manner detrimental to the administration of justice.
14. An Order of Certiorari is issued quashing the criminal charges as against the DCJ.
15. No orders are issued as to the Interested Parties as his prayers were outside the prayers by the Petitioner.