DCJ Mwilu faces a fresh petition for removal over Gachagua case

A finding by the court of appeal last week that the Deputy Chief Justice (DCJ) Philomena Mwilu lacked legal capacity to appoint a bench to hear a case which paved way for the swearing in of Deputy President Kithure Kindiki, has returned to haunt her.

A city resident Belinda Egesa has filed a petition at the Judicial Service Commission (JSC) to investigate her conduct and recommend to the president for her removal.

Ms Egesa says the actions of Justice Mwilu amount to misconduct and contravention of the Constitution.

The petitioner claims in the petition filed on Tuesday that the DCJ usurped the duties of the Chief Justice (CJ) Martha Koome and should be investigated.

Her ouster plea is hinged on alleged gross misconduct for usurping powers of her boss, CJ Koome, to assign judges to the impeachment case of former Deputy President Rigathi Gachagua.

The proposed ouster comes two(2) weeks after Ms Mwilu, together with the other six Supreme Court judges, secured a reprieve in a separate case involving alleged misconduct following the High Court’s decision to stop the Judicial Service Commission (JSC) from initiating disciplinary proceedings.

In the new ouster petition filed at the JSC on Tuesday, Ms Mwilu is accused of contravening the Constitution and the Judicial Service (Code of conduct and Ethics) Regulations 2020.

The petition was filed by a Nairobi resident named Ms Belinda Egesa. She alleges that Ms Mwilu demonstrated incompetence by misinterpreting Article 165(4) of the Constitution on powers of the CJ to assign judges in an expanded bench dealing with a case raising substantial questions of law.

Ms Egesa’s petition originates from last week’s verdict by the Court of Appeal that it was unlawful for the DCJ to assign justices Erick Ogolla, Anthony Mrima and Fridah Mugambi a case lodged at the High Court in Kerugoya on Mr Gachagua’s impeachment.

The case filed by two(2) Kirinyaga residents was challenging the swearing-in of the current DP, Prof Kindiki to replace Mr Gachagua.

Last Friday, the Court of Appeal found that the Mwilu-appointed bench, which allowed Prof Kindiki to be sworn in as the Deputy President, was illegally constituted since she lacked authority to exercise the powers reserved for the CJ.

Based on this verdict, Ms Egesa wants the JSC to investigate Ms Mwilu in relation to gross misconduct, incompetence and violation of the Constitution and subsequently recommend to the President her removal from the office of the Deputy Chief Justice.

“The consequence of the unconstitutional conduct of the Deputy Chief Justice in improperly empaneling the bench of three Judges resulted in setting aside of the conservatory orders in Kerugoya High Court, thus greenlighting the swearing-in of Prof Kindiki as the Deputy President replacing Mr Gachagua. These events cannot be practically reversed, resulting in a crisis of legality and institutional integrity,” she argues.

Through her lawyers, Bashir & Associates Advocates, the petitioner contends that Ms Mwilu violated Article 165(4) of the Constitution since the power to assign judges is reserved for the Chief Justice.

“The DCJ acted in excess of her mandate under Article 165(4) by unlawfully empaneling a High Court bench on October 18, 2024. This was a direct usurpation of the Chief Justice’s constitutional role. The Court of Appeal found her conduct to be unconstitutional,” she says.

Regarding claims of incompetence, Ms Egesa says: “The conduct of Lady Justice Philomena Mbete Mwilu, the Deputy Chief Justice, reflects an inability or unwillingness to comply with constitutional norms and institutional roles, particularly concerning high-stakes constitutional litigation”.

“Her misinterpretation of Article 165(4) of the Constitution compromises her ability to hold the office of the Deputy Chief Justice”.

On the alleged contravention of the Judicial Code of Conduct and Ethics regulations, the petitioner says Ms Mwilu “failed to carry out the duties of her office with impartiality and objectivity, including administrative duties”.

“Usurpation of the role of the Chief Justice per Article 165(4) contravenes Regulations 9, 11 and 13 of the Code of Conduct,” she says.

The said provisions involve impartiality, integrity and accountability of judges.

The petitioner believes that the conduct of Ms Mwilu in empaneling the bench “has placed the Judiciary in disrepute” and “eroded public confidence in the Judiciary”.

“The current Deputy Chief Justice's continued stay in office sends the message that the JSC condones unconstitutional conduct, undermining its own credibility and its constitutional duty to uphold the rule of law, judicial independence, and accountability in the Judiciary,” reads the petition.

To succeed in the proposed ouster, Ms Egesa’s advocates are banking on the Court of Appeal's finding that "indubitably, we find and hold that there was no evidence that the Deputy Chief Justice was the acting Chief Justice or that there existed exceptional circumstances that permitted the Deputy Chief Justice to exercise the mandate constitutionally reserved for the Chief Justice by Article 165 (4) of the Constitution".

This is the third time Justice Mwilu is facing an ouster bid from a high-profile case. In November 2021, a three-judge bench of the High Court consisting justices Juma Chitembwe, Weldon Korir, and Roseline Aburili, thwarted attempts by former Director of Public Prosecutions (DPP) Noordin Haji and former Director of Directorate of Criminal Investigations (DCI) George Kinoti to push her out of office over alleged corruption and misconduct.