Deputy Chief Justice Philomena Mwilu is facing renewed calls for her removal from office following accusations of overstepping her constitutional mandate in a high-profile impeachment case involving former Deputy President Rigathi Gachagua.
The latest petition, lodged with the Judicial Service Commission (JSC) by Nairobi-based petitioner Belinda Egesa, claims that Ms Mwilu unlawfully empanelled a bench to hear the case—an authority strictly reserved for Chief Justice Martha Koome.
The case had challenged the swearing-in of Professor Kithure Kindiki as Gachagua’s replacement, following the latter’s controversial ousting.
According to Ms Egesa, “The DCJ 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.”
Her petition leans heavily on a recent Court of Appeal ruling that found the bench, composed of justices Erick Ogolla, Anthony Mrima and Fridah Mugambi, had been irregularly constituted.
“The consequence of the unconstitutional conduct… resulted in setting aside of the conservatory orders in Kerugoya High Court, thus greenlighting the swearing-in of Prof Kindiki,” the petition notes, warning that it “resulted in a crisis of legality and institutional integrity.”
It is alleged that Ms Mwilu’s actions breached several provisions of the Judicial Code of Conduct, including Regulations 9, 11 and 13. “Her misinterpretation of Article 165(4) of the Constitution compromises her ability to hold the office of the Deputy Chief Justice,” Ms Egesa argued.
This marks the third attempt to unseat Ms Mwilu, who previously survived allegations of misconduct in 2021. The JSC is now under pressure to act, with critics claiming the judiciary’s credibility is on the line.
