Deputy Chief Justice Philomena Mwilu is facing arguably the greatest hurdle in her legal career following her arrest and arraignment in court over a Ksh12 million personal loan from Imperial Bank.
According to investigators, the country’s second-highest judge acted in contravention of the Leadership and Integrity Act by accepting the loan.
This borders some of the reasons stipulated in Chapter Ten of the Constitution on Judiciary which highlights among other things gross misconduct or misbehaviour and a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament as sufficient grounds for a Judge's removal.
However, according to the Constitution, the process of removing her from office is rigorous as captured here beneath.
First, the Constitution stipulates that the removal of a judge may be initiated only by the Judicial Service Commission (JSC) acting on its own motion, or on the petition of any person to the Judicial Service Commission.
Following the filing of such a petition in writing presenting the alleged facts constituting the grounds for the judge's removal, the JSC if satisfied is required to send the petition to the President.
Upon receiving the petition, the President is required to suspend the judge from office within fourteen days in accordance with the recommendation of the JSC.
The president is then required to form a tribunal consisting of the Speaker of the National Assembly, as chairperson, three superior court judges from common-law jurisdictions, one advocate of fifteen years standing; and two other persons with experience in public affairs.
It is this tribunal that is legally expected to "inquire into the matter expeditiously and report on the facts and make binding recommendations to the President".
The President is then required to act in accordance with the recommendations made by the tribunal either on the expiry of the 10 days since the conclusion of the tribunal’s report or the completion of all allowed rights of appeal in any proceedings.
