Through the lenses of Mwilu v DPP and Mwilu v JSC; Judicial

integrity, Judicial immunity or Judicial impunity? A Growing

By Miracle Okoth Okumu Mudeyi

Introduction
Former Nairobi City County Governor painted a picture of a rotten and corrupt judiciary several
weeks ago when he blamed some judicial officers for his woes and ultimate fall from grace and
the ultimate seat of power. The out of favour politician in an expose via his social media
platforms alleged that there was a conspiracy among judicial officers to dismiss his impeachment
case subsequently sending him into political nihility1. Mike Sonko’s woes whether true or untrue
continue to highlight the Judiciary as selling justice to the highest bidder in the eye of the public.
Clarence Seward Darrow, a celebrated 20th Century American defence attorney, Speaker, Writer,
and a hedonistic defender of the poor and downtrodden, once remarked;
“Justice has nothing to do with whatever goes on in a courtroom but rather justice is whatever
comes out of a courtroom.”
In his 1973 book, Charles R. Rashman is quoted as saying, “No judge is outrageously corrupt by
himself. For every judge, that money can buy there must be buyers and brokers. Most of the
judicial corrupters are relatives of judges, practicing lawyers, or their predatory intermediaries.” 2
The International Anti-Corruption Day is observed annually on 9th December, since the passage
of the United Nations Convention against Corruption on 31st October 2003 to raise public
awareness for anti-corruption. This day reminds us of the importance of truth and honesty.
Kenya’s custodian of justice is perceived by 28 percent of Kenyans to be drowning in the dirty
and murky waters of corruption according to a 2019 Global Barometer Africa Report3.

1
Paul Ogemba ,Sonko petitions JSC for removal of judges(25th November 2021) Available at
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.standardmedia.co.ke/amp/national/article/
2001430100/sonko-petitions-jsc-for-removal-of-
judge&ved=2ahUKEwijj4mQ6tv0AhXSCWMBHVTTDsE4ChDIzwEoAHoECAQQAg&usg=AOvVaw282wpc9lP
ifJDBHNte2zjO Accessed 11th December2021
2
Charles R. Ashman, The Finest Judges Money Can Buy: And Other Forms of Judicial Pollution, 1973.
3
Coralie Pring and Jon Vrushi, Global Corruption Barometer Africa 2019 - Citizens' Views And Experiences Of
Corruption (Transparency International 2019).
Professor Jectone Boma Ojwang’ postulates that Judicialism is the belief that a country's political
and governmental structure is best built when the judicial process serves as its core pillar. The
judicial process is regarded as a friendly and people-focused mechanism in this case because it
does not arbitrarily exclude anyone, so long as the rules of locus standi are followed; it does not
discriminate between the weak and the strong; it has expedient and objectively-designed
procedures for the conduct of proceedings; it is a listening and hearing mechanism; it resolves all
justiciable disputes, including racial discrimination; it is a listening and hearing mechanism; it is
sensitive to questions of merit; As a result, the judiciary is the traditional vehicle of organized
governance4.
International Framework for Judicial Ethics
Professor Ojwang posits that the Bangalore Principles of Judicial Conduct5 are prefaced with a
significant preamble, which cites the very same concerns about the integrity of the Judiciary that
run right through the Constitution of Kenya, 2010. In those Principles, certain constitutional
values are extolled; these are:
(i) everyone’s entitlement, in full equality, to a “fair and public hearing by an independent and
impartial tribunal”;
(ii)the importance of “a competent, independent and impartial judiciary to the protection of
human rights”;
(iii) the fact that “an independent and impartial judiciary is essential if the courts are to fulfil
their role in upholding constitutionalism and the rule of law”;
(iv)the fact that “public confidence in the judicial system and in the moral authority and integrity
of the judiciary is of the utmost importance in a modern democratic society”;
(v) the fact that “it is essential that judges, individually and collectively, respect and honour
judicial office as a public trust and strive to enhance and maintain confidence in the judicial
system.”
The Bangalore Principles of Judicial Conduct identify six core values of the judiciary –
Independence, Impartiality, Integrity, Propriety, Equality, Competence and Diligence. They are
intended to establish standards of ethical conduct for judges6.

Chief Justice Martha Koome to the rescue? Strides made so far

4
Ojwang, J.B.‘Judicial ethics and judges’ conduct: The complaints mechanism’ (Judges Colloquium 2011)
<http//www.eKLR/klrjournal/judgescolloquim2011.html > accessed 15 December 2021

5
The Bangalore Draft Code of Judicial Conduct 2001 adopted by the Judicial Group on Strengthening Judicial
Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, November
25-26, 2002)
6
The Bangalore Principles of Judicial Conduct, adopted by the Judicial Group on Strengthening Judicial
Integrity, as revised at the Round Table Meeting of Chief Justices at The Hague, 2002.
On the 9th of December 2021, in marking the International Anti- Corruption Day, Chief Justice
Martha Koome made her pronouncements as such,
“Corruption undermines national development and a society’s moral fabric. It also deprives
citizens, especially the vulnerable access to social and economic goods. It is time for us to rise
up collectively and join the fight to root out this cancer from our policy politics before it
destroys our nations, institutions, and societies.”
Barely a hundred days into office Chief Justice Martha Koome has come out guns blazing in the
fight against corruption where the public has a perception that the Judiciary is the altar of
corruption. Will the Good Chief Justice succeed where her predecessors were perceived to have
failed7?
In the financial year 2020/2021, the Judicial Service Commission received and processed 103
petitions against judges, 87 complaints were concluded, while 16 were still pending at the end of
the reporting period8.
Chief Justice in her remarks during her swearing in showed a lot of promise, vowing to make it
her zeal and ambition to surgically remove in eternity the cancer that is corruption within the
ranks of the judiciary,
“The Judiciary’s role is to adjudicate conflicts based on the Constitution and the law to promote
peace and prosperity. Resolution of conflict however, doesn’t mean that all parties are satisfied,
but our constitutional democracy requires that those dissatisfied with legal rulings pursue the
matter through the judicial process and legal channels.”9

During the occasion of admitting lawyers into the roll of advocates she pronounced herself as
follows;
“The guiding light of the Constitution’s value system is the Charter’s intention of establishing a
socially just state and society. The Constitutional goal of creating a just social order will only be
realized when all citizens including those of us in the legal profession, embrace the required
ways of conduct required in such a society.”10

7
Paul Mwangi (Google.com , 2021)
https://www.google.com/url?sa=t&source=web&rct=j&url=https://nation.africa/kenya/blogs-opinion/opinion/
cartels-in-the-legal-profession-how-lawyers-are-actors-and-accessories-to-corruption-127224%3Fview
%3Dhtmlamp&ved=2ahUKEwiJ0-
WR1Nv0AhWm3OAKHXnEC9kQFnoECAQQAQ&usg=AOvVaw2t1iCHVOUUNneuiTUtBsbi accessed 11
December 2021.
8
State of the Judiciary and The Administration of Justice Annual Report 2020/2021

9
Speech by Justice Martha Koome on being sworn in office as the 16th Chief Justice of Kenya and third President
of the Supreme Court of Kenya

10
Chief Justice’s address on the occasion of admission of lawyers to the roll of advocates, at the Supreme Court
gardens on 13th September 2021
She further vowed not to condone any corruption and abuse of office of any individual working
within the institution of the judiciary irrespective of the person’s rank or office11.
On the 3rd of November 2021 during the launch of the Ethics and Anti-Corruption Commission’s
systems reviews into the policies ,procedures and practices of the Judiciary she held out that;-

“1. For a long time, there has been a perception within our country that the Judiciary has not
gotten rid of corruption within the institution’s systems and operations. The consequence of this
lingering perception is that the public confidence and trust in the Judiciary has remained low
2. As promised in the Judiciary’s ‘Social Transformation through Access to Justice (STAJ)’
vision, enhancing public trust and confidence in the Judiciary is a key outcome that we will
pursue going forward. Giving effect to this goal demands that we be proactive, rather than
reactive, by taking preventive measures which include identifying the avenues and opportunities
for unethical and corrupt practices and working towards eliminating them.
3. The avenues and opportunities for corruption are largely a function of distortion of laws,
policies, practices, and processes to favour personal or private interests. In addition, weak
systems and processes create loopholes for corruption to thrive. Thus, the need to seal them to
eliminate opportunities for corruption.”12

The Supreme Court Dispensation on the procedure to be followed by a litigant claiming

11
The Star, 2021. Koome vows firm swift action on corruption amid Sonko leaks. [online] Available at:
https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.the-star.co.ke/news/2021-11-22-koome-
vows-firm-swift-action-on-corruption-amid-sonko-leaks/&ved=2ahUKEwju97a-5uD0AhUwS_EDHcP-
A6UQFnoECAMQAQ&usg=AOvVaw3Kyjpbs9nvanXCYVgbBvRj [Accessed 13 December 2021]
12
Ibid
13
Petition No.42 of 2018 [2020]eKLR
 Article 160 (5) of the Constitution entrenched the immunity of judicial officers who acted in
good faith. The immunity granted by article 160(5) encapsulated protection from legal
proceedings founded on acts committed or omissions made by judges in the lawful performance
of their judicial functions. Judicial immunity was an important tenet in the delivery of justice and
the maintenance of the rule of law. A judge, as well as other judicial officers, were required to
have confidence in carrying out their judicial functions without the fear that they would be
prosecuted or harassed for their acts or omissions. The concept of judicial immunity was also an
important aspect of judicial independence under the doctrine of the separation of powers. The
protection offered to judicial officers in article 160(5) of the Constitution was inherent in the
independence of the Judiciary as a state organ within the doctrine of separation of powers. It
would be repugnant to the cause of justice if judges would act in fear of legal actions being
brought against them for decisions they made in the course of discharging their mandate. Article
160(5) of the Constitution was not necessarily for the benefit of the judicial officer concerned.
Constitution was not necessarily for the benefit of the judicial officer concerned. Article 160(5)
of the Constitution drew the line between immunity and impunity; the line crossed where acting
lawfully and in good faith met willful and negligent abandonment of the oath of office to uphold
the integrity and independence of the Judiciary and to dispense justice without fear or favour.
Article 160(5) was not blind to that inherent distorted character between judicial immunity and
impunity, and thus provided a resonating standard for judicial officers to act according to the
tenets enunciated under the Constitution; to ensure that there was rule of law, protection of
fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point
spoke to the lawful action qualification as it did to the good faith expectation. Judicial immunity
was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust
of the public and ensure transparency and accountability. Article 160 (5) of the Constitution
granted judicial officers immunity if they acted in good faith. The antithesis to acting in good
faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the
performance of judicial acts.
It is noteworthy that the same court had set a gold standard in Robert Tom Martins Kibisu v
Republic14 , where they underscored that where a judge is alleged to be biased ,cogent evidence
is required ,and allegations based on apprehension and conjecture are insufficient.

The Consanguinity of the Bar and the Bench, the missing link in the fight against Judicial
corruption?
Emeritus Chief Justice Willy Mutunga has had these to say on the relationship between the bar
and the bench in relation to unethical judicial conduct,
“Unethical judicial conduct frequently implicates lawyers. While the bar should hold the
Judiciary accountable and keep vigilant to ensure that the Judiciary is free of corruption, they
14
[2018]eKLR
must also address corruption in their midst. The Swahili proverb – nyani haoni kundule, huliona
la mwenziwe is an apt analogy. Under the new Constitution, the bar of public morality has been
raised, and the frontiers of public disclosure greatly enhanced. Although Law Society of Kenya
members are not State or public officers, the values of accountability espoused in the
Constitution should be used as guidelines for their conduct. It is common knowledge that money
obtained through corruption is sanitized by lawyers through client accounts. When questions
regarding these monies are raised, lawyers are quick to invoke the advocate-client relationship
which is confidential. Whereas the principle behind advocate-client relationships is
understandable, there is a need to debate and rethink the manner in which lawyers establish
client accounts15”.
Willy Mutunga further submits that;-
“The bar must hold the Judiciary accountable for the clarity and quality of its decision-making.
Because lawyers are the primary readers of judicial opinions and the most skillful evaluators of
these opinions they are therefore the most regular and most skillful critics of judge’s work.
There is a need for high-quality commentary on judgments coming from the courts and the
bench should not be overly sensitive to criticism. Hopefully, critiques of judgments will revive
legal writing and literature in Kenya, which is currently disappointing. In sum, the quality of our
jurisprudence from the bench will only improve if the bar openly critiques the soundness of our
judgments.”16

Advocate Paul Mwangi contends that lawyers must stand up for their fellow countrymen and
refuse to allow the legal profession to be used as an accessory in the perpetration of corruption
It, therefore, pierces the very soul of justice when a courthouse is violated. Any activity that
takes place inside the precincts of the court that in any way undermines the confidence of the
public in the ultimate authority of the judge or magistrate in the courthouse is an unacceptable
subversion of judicial power. How will the people believe that the law and the courts can afford
them any protection if the very altar on which judicial rituals are conducted affords no
protection to the High Priests of those juridical liturgies?17
Paul Mwangi further registers his disappointment with Judicial decisions that seem to shield
Judicial officers from the fangs of the Criminal Justice system, referring to the courtroom as a
sacrosanct temple of justice where none is allowed to violate it, he says;-

15
The legal profession and the new constitutional order in Kenya Ghai & Cottrell - Strathmore University Press -
2014
16
Ibid
17
Paul Mwangi (Google.com,2021)
https://www.google.com/url?sa=t&source=web&rct=j&url=https://nation.africa/kenya/blogs-opinion/opinion/
cartels-in-the-legal-profession-how-lawyers-are-actors-and-accessories-to-corruption-127224%3Fview
%3Dhtmlamp&ved=2ahUKEwiJ0-
WR1Nv0AhWm3OAKHXnEC9kQFnoECAQQAQ&usg=AOvVaw2t1iCHVOUUNneuiTUtBsbi accessed 11
December 2021
“I do not believe that judicial office affords any person special treatment before the law, and I
do not agree with the decisions reached by our courts respecting the immunity of judges from the
criminal process that every Kenyan is subject to18.”

Through the lens of Mwilu v JSC19 and Mwilu v DPP20 Judicial integrity, judicial immunity
or judicial impunity, a poisoned chalice?
Gitobu Imanyara refers to judicial independence as Kenya’s last buffer line, stopping the country
from generating into absolute tyranny and that judicial independence is a collective national
good and should be protected as such.

The case Philomena Mbete Mwilu v Judicial Service Commission & 2 others; Director of
Public Prosecutions & another (Interested Party) drew mixed reactions within the ranks of
the legal profession. In the aforementioned case, a declaration was issued stipulating that the
Director of Public Prosecutions and the Director of Criminal Investigations as State officers, do
not fall into the category of “any person” as envisaged under Article 168(2) as read with Article
260 of the Constitution and they therefore cannot petition the Judicial Service Commission for
the removal of the Petitioner or any judge from office as allowing them to petition for the
removal of a judge from office violates the doctrine of separation of powers under Article 1(3) of
the Constitution.
In the case of Apollo Mboya v Judicial Service Commission and Another21 the role of JSC
was to initiate or receive a complaint against a judge, considering whether it disclosed a ground
for removal as set out in Article 168(1) of the Constitution and if it did, to forward the petition to
parliament for purposes of forming a tribunal to hear and determine the petition on merit. It was
further declared that the Judicial Service Commission has no mandate to administer any form of
discipline against judges of the Superior Courts of Kenya and such an admonishment was
unconstitutional and therefore null and void ab initio.
Advocate Caxstone Kigata argues on his twitter handle that the Court in Mwilu v DPP is
tantamount to a judicial coup since it denies the Directorate of Criminal Investigations, the
Ethics and Anti-Corruption Commission the locus standi to institute a complaint before the
JSC22.He further opines that:-
Judges, like Caesar’s wife, should be above suspicion. The credibility of the judicial system is
dependent upon the Judges who man it, and thus, for democracy to thrive, every judge must
discharge his functions with integrity, impartiality and intellectual honesty.

18
Ibid1
19
[2021]eKLR
20
[2019]eKLR
21
[2020]eKLR
22
Caxtsone P.Kigata(@CaxstonePKigata) Twitter, 18th November 2021
https://twitter.com/CaxstonePKigata/status/1461206783842738181?t=rrK7CVtLf1OBqJZl54wG7w&s=19 Accessed
on December 16, 2021.
Advocate Charles Kanjama decries judicial integrity as a matter of growing concern to legal
practitioners and that it is the fruit of some judges using the High Court to stop the JSC from
doing its job23.
Significance of the Mwilu v DPP Decision
The decision highlighted the continued ligation by JSC despite the fact that there is lack of rules
and regulations to govern its procedures for removal of judges under Article 168 of the
Constitution despite incessant calls on the importance of such rules. The necessity of having such
rules is underpropped in Section 47(2) (c) of the Judicial Service Act24.The lack of rules allows
the JSC to whimsically keep changing keep on changing its procedures thereby resulting in
unpredictable and inconsistent handling of complains against judges. Although the JSC cannot
be stopped from executing its constitutional mandate due to lack of rules to govern proceedings
before it25.
This decision also buttresses the one taken by the High Court in Nancy Makokha Baraza v
Judicial Service Commission and 9 others26 where it was ruled that Article 50 of the
Constitution entitles a judge to fair hearing since the process may lead to the formation of a
tribunal by the President for the removal of a judge from office under Article 168(5).
It is worth paying attention to the fact that the judges in Mwilu v DPP did not digress from the
position of the High Court in Philomena Mbete Mwilu v Director of Public Prosecution and 3
others27 where several significant conclusions were made as follows; The charges were not
defective for lack of a complainant as the Republic, through the National Police Service, is a
proper complainant infringe on her right to dignity. The decision of the DPP to prosecute the
Petitioner was not taken in contravention of Article 157(11) and was not tainted by any
irrationality or unreasonableness. Judicial immunity does not shield a judicial officer from
criminal prosecution. Acts of a criminal nature committed outside the scope of official judicial
function may be investigated and the judicial officer arrested and prosecuted directly without
recourse to the disciplinary or removal process. While the DCI is not precluded from
investigating criminal misconduct of judges, there is a specific constitutional and legal
framework for dealing with misconduct and/or removal of judges. Consequently, cases of
misconduct with a criminal element committed in the course of official judicial functions, or
which are so inextricably connected with the office or status of a judge shall be referred to the
JSC in the first instance. The circumstances were outside the scope of the Petitioner’s judicial
duties and functions and it could therefore be tried directly without recourse to JSC.

Concluding Thoughts
23
Charles Kanjama(@ckanjama) Twitter 17th November 2021
https://twitter.com/CaxstonePKigata/status/1461206783842738181?t=rrK7CVtLf1OBqJZl54wG7w&s=19 Accessed
on December 16, 2021.
24
Judicial Service Act, 2011.
25
JSC v Mbalu Mutavu and Another [2015]eKLR
26
[2012] eKLR
27
[2019]eKLR
The two Mwilu decisions do not seek to usurp the constitutional framework aimed at
maintaining judicial integrity, ethics