Kenya: Judges Postpone Mwilu Petition as Lawyers Lock Horns Over Queens Counsel's Role

Photo: Capital FM
Deputy Chief Justice Philomena Mwilu.
6 December 2018

Nairobi — A five-judge bench of the High Court hearing Deputy Chief Justice Philomena Mwilu's petition seeking to stop criminal proceedings against her has adjourned to January 17 when it will determine preliminary objections raised by parties to the suit.

Justices Hellen Omondi, Mumbi Ngugi, William Musyoka, Francis Tuiyot and Chacha Mwita gave the parties 14 days to file submissions with a similar timeline set for filing of responses.

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Thursday's adjournment was triggered by contention over the appointment of Queen's Counsel Khawar Qureshi to lead the legal team of the Director of Public Prosecutions (DPP), Mwilu through Senior Counsel James Orengo telling the court that the London-based law professor had not been duly admitted to litigate in the country.

"The Advocates Act (Part III) provides absolute discretion to the Attorney General to admit as an advocate, an advocate coming from the Commonwealth as provided for in Section 11," Orengo told the court.

He however argued despite being gazetted by DPP Noordin Haji on Wednesday, there was no evidence that Qureshi had been certified to litigate in Kenya in line with provisions under the Advocates Act.

"We would think that it is appropriate that there should have been a gazette notice and if indeed he (Qureshi) is admitted for purposes of any case in exercise of that absolute discretion by the Attorney General, then there should be evidence of admission to the bar," the Siaya Senator who doubles up as Senate Minority Leader submitted.

Deputy DPP, Dorcas Oduor however dismissed Orengo's assertions saying Qureshi had complied with provisions of the Advocates Act.

"The Act provides that the Attorney General, in his absolute discretion, can admit someone as an advocate, the only rider is that one has to pay the Court Registrar's fee which we did pay," she indicated.

"Once you pay the Court Registrar's fee, the court has to issue you with a certificate. What happens is that you can be admitted but the certificate is yet to be availed in which case the practice has been you produce the receipt in court as evidence of admission," she explained.

Speaking to the press after the day-long court session, Qureshi said his appointment to prosecute the matter will provide fresh insights based on his practicing experience in most commonwealth countries in graft-related matters.

"International counsel such as myself who've acted on large-scale fraud/corruption cases, I'm confident that I can bring some insights to these issues," he said.

Qureshi said he was "bound to accept instructions for cases outside the United Kingdom jurisdiction provided there was no conflict of interest," adding that the matter before the court fell within the ambit of his practice area.

The law professor defended Haji from accusations of lacking independence in his decision to outsource a lawyer to prosecute Mwilu's case saying the decision was premised on the need to safeguard the independence of the public prosecutor's office.

"My understanding is that the very reason why DPP Haji instructed me was, despite the lack of any substance to the assertions raised, he is doing everything he can to demonstrate that he is acting independently and fairly. No doubt the court will determine this on January 17," he said.

During the proceedings on Thursday, the DPP also raised objections over the involvement of Senator Orengo and Okong'o Omogeni of Kisii in the case.

Oduor is set to file substantive objection to the involvement of the duo.

She argued that by virtue of being members of the Senate and the Committee on Justice, Legal Affairs, and Human Rights, the two lawyers have access to information that could jeopardize the public prosecutor's case.

"The Senators have a privilege. The issue of Prof Qureshi was discussed when DPP Haji appeared before the Committee on Justice, Legal Affairs, and Human Rights. Orengo interrogated the Attorney General. He didn't raise an issue with the DPP. He ought to have declared his interests in the Senate," Oduor told the press.

She said lawmakers especially members of committees that summon State agencies tasked with the fight against graft must recuse themselves from corruption cases filed in court if the interests of the public are to be safeguarded.

"Senate by virtue of its oversight mandate has access to information we provide when we appear before committees. Where do we draw the line about the information Senators come by and how they use the same in court to represent their clients?" she interrogated

Mwilu has been battling to stop the public prosecutor from indicting her with five graft-related charges arising from benefits she is said to have accrued irregularly from a local bank in 2016.

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