Petition Filed for the Removal of DCJ Mwilu from Office Over Gachagua’s Impeachment Case

Deputy Chief Justice Philomena Mwilu faces a fresh ouster bid following allegations of gross misconduct related to the impeachment case of former Deputy President Rigathi Gachagua.

The petition, filed Tuesday at the Judicial Service Commission (JSC), accuses DCJ Mwilu of usurping powers constitutionally reserved for Chief Justice Martha Koome.

Nairobi resident Belinda Egesa, through her lawyers at Bashir & Associates Advocates, filed the petition just two weeks after Mwilu and six other Supreme Court judges received a reprieve in a separate misconduct case.

The High Court had previously halted the JSC from initiating disciplinary proceedings against them.

The petition centers on last week’s Court of Appeal verdict which ruled that DCJ Mwilu acted unlawfully when she assigned Justices Erick Ogolla, Anthony Mrima, and Fridah Mugambi to a High Court case in Kerugoya.

That case, filed by two Kirinyaga residents, challenged the swearing-in of Professor Kithure Kindiki as Deputy President following Gachagua’s impeachment.

“The Deputy Chief Justice acted in excess of her mandate under Article 165(4) by unlawfully empanelling a High Court bench on October 18, 2024.

This was a direct usurpation of the Chief Justice’s constitutional role,” the petition states.

According to the Court of Appeal’s ruling, the Mwilu-appointed bench—which ultimately allowed Prof. Kindiki to be sworn in as Deputy President—was illegally constituted because Mwilu lacked the authority reserved for the Chief Justice.

Petitioner Seeks Removal from Office

Based on the Court of Appeal’s findings, Egesa wants the JSC to investigate Mwilu for alleged gross misconduct, incompetence, and violations of the Constitution, potentially recommending her removal from office to the President.

“The consequence of the unconstitutional conduct of the Deputy Chief Justice in improperly empanelling 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,” argues Egesa in her petition.

The petition further alleges that Mwilu violated the Judicial Service Code of Conduct and Ethics Regulations 2020, specifically regulations 9, 11, and 13, which involve impartiality, integrity, and accountability of judges.

“The Deputy Chief Justice failed to carry out the duties of her office with impartiality and objectivity including administrative duties,” states the petition.

Egesa contends that Mwilu’s actions have “placed the Judiciary in disrepute” and “eroded public confidence in the Judiciary.”

Third Ouster Attempt

This marks the third time DCJ Mwilu has faced removal proceedings stemming from high-profile cases.

In November 2021, she survived an ouster attempt when a three-judge bench of the High Court thwarted efforts by then-Director of Public Prosecutions Noordin Haji and Director of Criminal Investigations George Kinoti to remove her from office over allegations of corruption and misconduct.

The new petition relies heavily 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.”

The JSC has yet to respond to the petition or announce when it will begin investigating the allegations against the Deputy Chief Justice.