Intrigues behind the controversy-laden Deputy CJ office

Since the promulgation of the new Constitution on August 27, Kenya has witnessed many challenges and controversies surrounding the position of the Deputy Chief Justice.

Not only does the position attract power, influence and status but also corruption.

Since 2010, Kenya has had three deputy CJs with the latest being Philomena Mwilu who has not gone unscathed from the corruption allegations.

Philomena Mwilu

Mwilu's arrest and subsequent arraignments in court brought to the fore predicaments faced by holders of the coveted office.

Just like other high-profile arrests in the recent past, Mwilu’s was not different.

Mwilu was accused of improperly obtaining the execution of a security belonging to the Imperial Bank, now under receivership, abuse of office, unlawful failure to pay taxes and conducting herself in disregard of the law.

Mwilu, the DPP says, used her office as a Court of Appeal judge to advance private interest and obtain a loan of Sh 12 million at zero interest without even applying for it.

She received an interest-free loan from Imperial Bank Limited (IBL) which she never even applied for, which according to the DPP amounted to an improper and suspicious benefit

After a while, Mwilu sensationally claimed that there have been efforts to remove her from office after she joined in nullifying President Uhuru Kenyatta’s election last year.

In an affidavit filed in court, Mwilu says that following threats made by the President after nullification of his first win, a series of events have targeted the Judiciary, specifically the majority judges.

The vote was 4-3, Mwilu read the majority opinion and was adamant that the presidential outcome must be overturned and a rerun scheduled.

The court cited massive “illegalities and irregularities”.

The High Court in May last year stopped Mwilu's prosecution, stating that the evidence underpinning the intended criminal prosecution had been illegally obtained by the Director of Criminal Investigations.

The court said that this was done in a manner that is detrimental to the administration of justice.

Kalpana Rawal

Rawal was appointed in 2013 and retired in 2016.

Born in January 1946, the Lady Justice was required to retire from the Supreme Court upon reaching 70 in January 2016 in line with Article 167(1) of the Constitution of Kenya.

But when the Judicial Service Commission served her with a retirement notice, she launched a protracted case insisting that she should leave office at 74 years since she was first appointed as a Judge under the old Constitution of Kenya which set the retirement age of Judges at 74.

 Both the High Court and the Court of Appeal confirmed the retirement age as 70, but she filed a further appeal before her colleagues in the Supreme Court who delivered a ruling which effectively confirmed the retirement age as 70.

Rawal further accused her employer, the Judicial Service Commission, of overstepping its powers and trying to manage judges.

Rawal said the JSC has no mandate to determine judges’ terms in office, and that it has little regard for her case, going by its decision to accept applications.

She was therefore honourably retired on 14 June 2016.

Nancy Makokha Barasa 

Born 1957 in Bungoma District Baraza was the first Deputy Chief Justice of Kenya and a member of Kenya's first Supreme Court after the promulgation of the 2010 Constitution.

Baraza served in the court from June 2011 to her suspension in January 2012 and subsequently resigned on 18 October 2012.

In January 2012, the Judicial Service Commission formed a sub-committee to investigate reports that Baraza assaulted a female security guard at the Village Market shopping mall on 31 December 2011.

Baraza allegedly pinched Rebbecca Kerubo’s nose and threatened her with a gun when Kerubo attempted to carry out a mandatory search on her.

The JSC subsequently recommended her suspension to President Mwai Kibaki and requested the President to appoint a tribunal to investigate her conduct in line with Article 168 (4) of the Constitution.  After her suspension, a commission formed to investigate her conduct re

On 18 October, she subsequently resigned after withdrawing her supreme court appeal of the tribunal's verdict.

But the question remains, is it possible to hold an office without having to engage in any corruption allegations or without having to get oneself in a compromising situation?

In 2019, President Uhuru Kenyatta said the Judiciary is not immune to the temptations of corruption and its officers must guard against criminals out to exploit court processes to escape the consequences of their economic crimes.

President Kenyatta said brokerage of justice has left many Kenyans broken and suffering and their businesses, health and lives destroyed through impunity.