Philomena Mwilu Faces Removal Petition Over Gachagua Impeachment Case

Deputy Chief Justice Philomena Mwilu is once again facing scrutiny, with a fresh petition filed seeking her removal from office. 

The petition, submitted by Nairobi resident Belinda Egesa to the Judicial Service Commission (JSC), alleges misconduct and constitutional violations related to the assignment of judges in a politically sensitive case. The core of the petition centres on Mwilu's decision to empanel a three-judge bench to hear a case concerning the impeachment of former Deputy President Rigathi Gachagua. 

The case, initially filed at the High Court in Kerugoya, questioned the legality of swearing in Professor Kithure Kindiki as Gachagua’s replacement. Egesa argues that this action overstepped Mwilu's authority, a claim substantiated by a recent Court of Appeal ruling. 

The Court of Appeal determined that Mwilu lacked the constitutional mandate to assign judges to the matter, as that power is exclusively reserved for Chief Justice Martha Koome. This ruling effectively nullified the bench Mwilu had constituted, raising questions about the legality of the judicial process that led to Kindiki’s swearing-in. 

Egesa asserts that this misstep has created a "crisis of legality and institutional integrity within the Judiciary." Egesa, through her legal representatives, Bashir & Associates Advocates, argues that Mwilu’s actions violated Article 165(4) of the Constitution, which grants the Chief Justice the sole authority to assign judges to cases involving substantial constitutional questions. 

The petition further claims that Mwilu’s decision compromised judicial impartiality and objectivity, contravening multiple provisions of the Judicial Service (Code of Conduct and Ethics) Regulations 2020. The petition calls for the JSC to investigate Mwilu for gross misconduct and incompetence, ultimately recommending her removal to the President. 

Egesa argues that allowing Mwilu to remain in office would signal that the JSC condones unconstitutional conduct, thereby eroding its credibility and its duty to uphold judicial independence. This challenge comes shortly after Mwilu and six other Supreme Court judges secured a reprieve in a separate case seeking disciplinary action against them. 

In 2021, a three-judge bench blocked efforts by former Director of Public Prosecutions Noordin Haji and former Directorate of Criminal Investigations boss George Kinoti to remove her over allegations of corruption and misconduct. As an independent arm of government, the Judiciary is expected to operate within strict constitutional boundaries to maintain public trust. 

Any perceived overreach by senior judicial officers risks undermining the institution’s credibility, particularly in politically charged cases.