Deputy Chief Justice Philomena Mwilu, who is the vice-president of the Supreme Court, has excused herself from the appeal lodged by businessman Geoffrey Asanyo contesting the dismissal of his Sh43million compensation for unlawful arrest and malicious prosecution in 2002.
Mwilu excluded herself from the case since Asanyo’s lawyer, Okong’o Omogeni, is among her defence team challenging her proposed prosecution over corruption allegations.
A five-judge High Court bench is handling Mwilu’s constitutional petition and will deliver its judgment on May 31.
Senior State Counsel Cliff Menge, representing the Attorney General, had applied for an adjournment on grounds that he had filed an urgent application before the Court of Appeal that was pending adjudication.
Justice Mwilu, sitting with Justices Ibrahim Mohamed, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola, postponed the hearing of the matter to await the appointment of a fresh bench.
Asanyo, along with his firms — Makana Motors, Multiple Sales Promoters and Wakam Enterprises — had sued the Attorney General, on behalf of the defunct Kenya Anti-Corruption Commission (Kaca), for unlawful arrest and prosecution.
He had been charged in 2002 with allegedly corruptly giving Sh180,000 to the former Town Clerk of the defunct Nairobi City Council, Zipporah Wandera, as an inducement for her to facilitate payments to Makana Motors Ltd.
Mwilu is facing corruption charges , failure to pay taxes and forgery. She is accused of accessing loans without following proper procedure.
She is also accused of failure to pay stamp duty on four properties she purchased between 2014 and 2016.
The bank is under receivership.
On the 31st May corruption ruling, should the court find that Mwilu can face criminal proceedings then she will have no option but step aside and battle her case.
After a three day hearing of the case where the Deputy Chief Mwilu is accused of obtaining financial benefit worth millions from Imperial Bank Limited without proper documentation, the five-judge bench presiding over the matter has adjourned to consider a ruling that would determine whether suspended criminal proceedings against Mwilu will proceed at the magistrate court.
During the final submissions the defense team strongly opposed Mwilu’s prosecution arguing that judges and magistrates are vulnerable and should be protected from unlawful prosecution.
The lawyers argued that the criminal case against Mwilu has no basis and cannot stand trial since allegations against her have no criminal links.
However the prosecution in calling for the dismissal of Mwilu’s petition claiming sufficient evidence exists for her to face the law and answer to charges of abuse of office, forgery and unlawful failure to pay taxes.