In what will be the biggest test for the handshake, Uhuru Kenyatta and Raila Odinga advisers are rooting for different candidates to succeed Chief Justice David Maraga when he exits the judicial helm early next year.
Maraga’s succession is billed as a high-stakes race since Deputy Chief Justice Philomena Mwilu is battling a petition filed at the JSC by the Director of Public Prosecution and the Director of Criminal Investigations demanding her removal over abuse of office.
According to sources, Uhuru is under pressure by a section of his handlers pushing for Solicitor General Ken Ogeto to replace his fellow Kisiiman at the highest judicial office.
The team that includes Internal cabinet secretary, Fred Matiang’i and East Africa Court judge, Charles Nyachae argue that Ogeto is the right candidate to lead the Supreme Court after Maraga has given his unwavering loyalty to the head of state.
In fact, the naming of Ogeto as Solicitor was to lay ground to land CJ plum slot.
But the ODM leaders, sources added, is rooting for Supreme Court judge, Justice Susanna Njoki Ndung’u to succeed Maraga as Raila eyes the Mount Kenya votes as a bloc.
Justice Ndung’u was also a student of Raila’s wife, Ida, at Kenya High School in the 1980s where Ida taught Geography.
Ida’s other students included former Mavoko MP Wavinya Ndeti, Siaya Senator James Orengo’s wife, Betty Murungi, and former Bomet governor, late Joyce Laboso. Njoki was also nominated by Raila party Liberal Democratic Party to parliament during Mwai Kibaki’s first term presidency.
As the lobbying is going on behind the curtains, the Judicial Service Commission (JSC) has now accused Deputy Chief Justice Philomena Mwilu of using shrewd tactics in order to save her job.
The commission faulted Mwilu and her team for allegedly manipulating the rules and employing delaying tactics in order to hamper court proceedings seeking her removal.
Since the first petition which was filed in 2018, no conclusive judgment has been pronounced, something that has seemingly further frustrated the JSC.
The commission currently cannot proceed with the four petitions filed against Mwilu owing to the orders of the High Court that suspended the proceedings.
The JSC has since pointed out that Mwilu withheld crucial information that would have deemed the suspension of the case unwarranted.
Mwilu’s lawyers, John Khaminwa, Nelson Havi, Okong’o Omogeni argued that the DCJ could not get a fair hearing before the JSC.
In a petition filed by her lawyers, she sought the exclusion of both Attorney General Paul Kariuki and the Law Society of Kenya (LSK) representative to the JSC Macharia Njeru, from the case.
They argued that AG Kariuki was part of the team that approved the decision to set in motion criminal proceedings against Mwilu.
Moreover, she claimed Njeru had taken sides and agreed with AG Kariuki’s stance to institute the case. This, she stated, meant that Njeru showed favoritism and was biased against her.
The JSC also pointed out that Mwilu had sought the removal of one of the petitions filed in 2019 by the office of the Directorate of Public Prosecution (DPP) and Directorate of Criminal Investigations (DCI).
She argued that state agencies were not allowed to file petitions for the removal of a judge. The DCJ had stated that petitions filed against ex-DCJ Nancy Baraza had been filed by individual holders of the office.
When the case was taken up by the JSC earlier in the year, her team further pushed for physical meetings instead of virtual meetings arguing that the virtual meetings were rushed and did not respect the rules of natural justice.
One of Mwilu’s lawyers, Khaminwa argued that due to his old age, he could not risk coming to the court owing to the then Covid-19 restrictions.
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