A protracted constitutionalism tussle between President Uhuru Kenyatta and Chief Justice David Maraga could after all save Deputy Chief Justice Philomena Mwilu from impending prosecution, it has emerged.
With High Court suspending criminal proceedings against Mwilu, DPP Noordin Haji may not have option other than allowing Judicial Service Commission to handle crimes levelled against her.
But delayed swearing-in of commissioners appointed by Uhuru and subsequent rejection by State House to gazette Appeals Court Judge Mohammed Warsane, could cause a quorum hitch, reports the Standard.
“As it were, if Justice Philomena Mwilu goes back, they will have a quorum but if she vacates, the JSC will be paralysed,” said lawyer Ahmednassir Abdullahi adding that Mwilu, who sits in JSC could excuse herself thus causing the hitch.
State House has refused to gazette Warsane, even after High Court ruled that he should not be subjected to parliament for vetting.
A JSC commissioner says in return, Maraga refused to swear three commissioners and the Attorney General Kihara Kariuki until Warsane is included in the list.
"The Chief Justice has insisted that he has to swear them in together. He cannot swear in the rest and leave out Warsame,” said the commissioner in confidence.
“The President is defying the Constitution and JSC has written to him several times and we even have responses, promising that he will gazette Warsame,” the commissioner added.
At the court, 32 lawyers defending the embattled DCJ led by James Orengo, argued that even if Mwilu could be having a case to answer, it must be civil since it involves 'commercial transactions that took place five years ago'.
Should the matter be referred to JSC and Mwilu excuse herself, then misconduct allegations against her may not proceed.