A fresh petition has been filed against Deputy Chief Justice Philomena Mwilu seeking her removal from the powerful position and her seat at the Supreme Court.
Mwilu's woes stem from her decision to empanel a three-judge bench to hear and determine a case by former Deputy President Rigathi Gachagua challenging his impeachment. The move made last year was ruled to be beyond the scope of her powers on Friday.
The petition filed by Belinda Egesa on Tuesday, May 13, argued that Mwilu demonstrated incompetence by misinterpreting Article 165(4) of the Constitution on the powers of the DCJ to assign judges in an expanded bench dealing with a case raising substantial questions of law.
Mwilu was also accused of contravening the Constitutional and Judicial Service Code of 2020, which outlines the ethical and professional standards expected of judges, judicial officers, and judicial staff in Kenya.
"In the matter of the judicial code of conduct and ethics, complaints of gross misconduct and incompetence, a petition for the removal from office of the Deputy Chief Justice Philomena Mwelu is hereby filed," the petition read in part.
Her petition follows a ruling by the appellate court, which ruled that it was unlawful for Mwilu to assign Justice Erick Ogolla, Anthony Mrima, and Fridah Mugambi a case lodged at the High Court in Kerugoya on Gachagua’s impeachment.
According to a judgment by the Court of Appeal, Mwilu went against the Constitution by taking over a mandate that could only be executed by Chief Justice Martha Koome.
The ruling was delivered on May 9 by a three-judge panel consisting of Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyott, which found that CJ Koome has the authority to empanel such a bench, making Mwilu’s decision unlawful.
Following the verdict, Egesa wants the JSC to investigate Mwilu for gross misconduct, incompetence and violation of the Constitution.
Subsequently, she recommended to the president her removal from the office of the Deputy Chief Justice.
“The consequence of the unconstitutional conduct of the DCJ in improperly empanelling the bench of three Judges resulted in the 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,” Egesa argued through her lawyers, Bashir and Associates Advocates.
She argues that Mwilu continuing to hold the office depicts a picture 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.
This is not the first time a petition has been filed seeking Mwilu's removal. In 2019, a similar petition was filed seeking her removal for alleged gross misconduct, misbehavior, graft, and breach of the judicial code of conduct.
