NAIROBI, Kenya – A Nairobi resident has petitioned the Judicial Service Commission (JSC) seeking the removal of Deputy Chief Justice Philomena Mwilu, accusing her of usurping powers constitutionally reserved for the Chief Justice when she empanelled judges to hear a case challenging the swearing-in of Deputy President Kithure Kindiki.
Belinda Egesa, through Bashir & Associates Advocates, claims that Mwilu violated Article 165(4) of the Constitution by constituting a three-judge High Court bench in October 2024, allegedly without authority.
The petition alleges gross misconduct, incompetence, and breach of the Judicial Code of Conduct and Ethics.
Egesa argues that the move—made while Chief Justice Martha Koome was not declared absent—amounted to an unconstitutional assumption of authority.
The judges appointed by Mwilu—Justices Eric Ogolla, Anthony Mrima, and Freda Mugambi—had been tasked with hearing a case filed in Kerugoya by two Kirinyaga residents opposed to the replacement of former Deputy President Rigathi Gachagua.
“The Deputy Chief Justice acted in excess of her mandate… This was a direct usurpation of the Chief Justice’s constitutional role,” reads the petition, citing a recent Court of Appeal ruling that declared Mwilu’s actions illegal.
Court Ruling Fuels Case for Removal
Egesa anchors her petition on the May 2025 Court of Appeal judgment, which held that Mwilu was not acting Chief Justice and had no legal basis to empanel the bench.
The appellate court said there were no “exceptional circumstances” to justify her action.
“The consequence of her unconstitutional conduct led to the setting aside of conservatory orders that had halted Kindiki’s swearing-in,” the petition notes, adding that the resulting events have triggered a “crisis of legality and institutional integrity.”
Allegations of Misconduct and Incompetence
Beyond constitutional overreach, the petition accuses Mwilu of incompetence for allegedly misinterpreting the law and failing to appreciate the limits of her office.
“Her misinterpretation of Article 165(4) compromises her ability to hold the office of Deputy Chief Justice,” argues the petitioner, who also claims that Mwilu breached several provisions of the Judicial Code, including rules on impartiality, integrity, and accountability.
According to the petition, Mwilu’s conduct has “eroded public trust” in the Judiciary and damaged the credibility of the institution.
“Her continued stay in office sends the message that the JSC condones unconstitutional conduct,” it reads.
JSC Urged to Act
Egesa wants the JSC to recommend Mwilu’s removal to the President under Article 168 of the Constitution.
“JSC should act decisively to preserve judicial accountability and safeguard the rule of law,” said her lawyer, Suleiman Bashir.
This is the third attempt to remove the DCJ from office.
In 2021, a similar petition by former DPP Noordin Haji and ex-DCI boss George Kinoti was dismissed by a three-judge bench.
The new petition comes days after the Court of Appeal invalidated the bench Mwilu had appointed, clearing the way for Kindiki’s swearing-in.
It also follows a High Court ruling temporarily barring the JSC from disciplining Mwilu and six other Supreme Court judges in a separate matter.
