The Director of Public Prosecutions, Noordin Haji, has appealed a decision by the High Court stopping charges he intended to bring against Deputy Chief Justice Philomena Mwilu.
In a notice filed at the High Court Monday, Mr Haji said he was dissatisfied with decision by the bench of five judges, who unanimously quashed the charges citing the manner in which the evidence against Justice Mwilu was obtained.
The judges found that the Directorate of Criminal Investigations (DCI) obtained the evidence by gaining access to the Deputy Chief Justice’s accounts at the collapsed Imperial Bank Ltd using a court order that had no bearing on the accounts and thereby misrepresenting facts.
Justice Mwilu was arrested last August on suspicion of corruption, failure to pay tax and improper dealings with Imperial Bank that was later placed in receivership.
In his notice of appeal, the DPP maintains that all their evidence was collected using properly issued court warrants.
Mr Haji says Ms Mwilu had abused her office for personal gain, undermining public integrity in the judiciary.
“If the court had called on all the parties, we could have evidence before them that we had all the warrants issued in relation with the investigations of the suspect’s accounts,” he said.
In addition to appealing the ruling, the DPP intends to file a complaint with the Judicial Service Commission, the judges’ employer.
In early 2018, the government launched a new anti-graft push led by Mr Haji, a former deputy head of the National Intelligence Service, who has since brought criminal charges against dozens of civil servants and business people
Justice Mwilu had challenged her planned prosecution, arguing that the allegations against her were pure commercial transactions, concluded in the normal course of the banking relationship between her and the bank.
The actions of the DPP and the DCI, she said, amounted to abuse of power and arbitrary exercise of authority.
The court quashed the 13 charges after it merged that the DCI got an order to investigate an account at KCB, relating to Blue Nile East Africa Ltd. But as the officers investigated the account, they stumbled on information that led to Justice Mwilu’s accounts with Imperial Bank.