DCJ Mwilu slams Havi's claims on 'Judicial influence'

Collage of Deputy Chief Justice Philomena Mwilu and Senior Counsel Nelson Havi/FILE

Deputy Chief Justice Philomena Mwilu has criticised advocate Nelson Havi for claiming that the Chief Justice either controls or will control the judges that may be constituted to hear and determine petitions challenging their removal from office.

Through her advocate, Julius Kemboi, Mwilu described these remarks as an insult to the judicial oath. Mwilu emphasized that the CJ does not control the judges she appoints as a bench to hear and determine matters before court.

She was responding to objections raised by the advocate, who claims that the High Court has no jurisdiction to hear the petitions filed by the Supreme Court judges challenging their removal from office.

Havi on Wednesday also told Justice Bahati Mwamuye not to refer the matters to the CJ for empanlment of a bench. He contended that the cases do not raise any weighty constitutional issues that would justify referring them to the CJ.

He argued that such a referral could lead to an absurd outcome.

"If you were to certify the matter and refer the matters to the CJ, she may empanel a favourable bench, an absurdity that shouldn't be allowed to prevail," Havi said.

"The other possible avenue would be the CJ declining to take action, causing the petitions before court to stall. The conservatory orders would then remain in perpetuity. It's an absurdity that ought not to be countenanced."

But Advocate Paul Nyamodi, representing one of the parties, disagreed with Havi asking the court to refer the matters to the CJ if it is satisfied that the issues raised can only be handled by more than one judge.

"We should avoid interpreting our constitution in a manner that leaves it hamstrung or crippled to responding to situations that are emerging as this," Nyamodi said.

He stressed that the CJ and DCJ, who are litigants in the cases before the High Court, must be allowed to empanel a bench if Mwamuye finds it proper to have the matters handled by more than one judge.

The process of empaneling a bench, he stressed, is not a judicial act.

"I submit that if you are persuaded that indeed you have the authority and go on to consider requests for empanlment and find it merited, then you should have no difficulty in making the appropriate directions, not withstanding the CJ and DCJ are parties in this matter," Nyamodi said.

Justice Mwamuye is currently presiding over the petitions filed by Mwilu and Justice Mohamed Ibrahim. Both parties had obtained orders blocking any proceedings before the JSC related to their removal from office.

What followed was Havi filing a preliminary objection challenging the court's power to inquire into proceedings filed before the Judicial Service Commission (JSC) concerning the removal of the Supreme Court judges.

Havi asserts that the top judges are obligated to pursue the only remedy available to them under Article 168(8) of the Constitution, which he says requires them to first submit to the jurisdiction of the JSC. But the judges have argued that the JSC is not the High Court and doesn't have the power to interpret the constitution.