NAIROBI, Kenya – The Judicial Service Commission (JSC) has dismissed a petition demanding the removal of Deputy Chief Justice Philomena Mwilu over her handling of the impeachment case of former Deputy President Rigathi Gachagua.
The petition, filed by Belinda Egesa, accused Mwilu of unlawfully empanelling judges to hear the case, overstepping her authority, and violating the Constitution.
It also alleged incompetence and claimed that her actions had serious constitutional consequences.
However, the JSC found that the petition did not meet the legal threshold for removing a judge under Article 168 of the Constitution.
The controversy arose when Mwilu appointed Justices Erick Ogola, Anthony Mrima, and Freda Mugambi to preside over the Gachagua case.
While the Court of Appeal later ruled that Mwilu had exceeded her mandate, the JSC noted that her actions were carried out in good faith amid legal uncertainty over the Deputy Chief Justice’s powers at the time.
In its May 9, 2025, judgment, the Court of Appeal acknowledged that the law was unclear on whether the DCJ could act in place of the Chief Justice.
The JSC concluded that Mwilu’s decisions were guided by genuine legal ambiguity rather than deliberate wrongdoing.
The High Court case in Kerugoya, filed by three Kirinyaga residents, had challenged both Gachagua’s impeachment and the swearing-in of Kithure Kindiki as his replacement.
The bench empanelled by Mwilu allowed Kindiki to assume office, but the Court of Appeal later annulled the decision, ruling that Mwilu had no authority under Article 165(4) to act on behalf of Chief Justice Martha Koome.
Egesa argued that Mwilu’s actions directly usurped the Chief Justice’s authority, resulting in “irreversible” constitutional consequences.
Her lawyers cited the appellate court’s declaration that there was no evidence Mwilu was acting as Chief Justice or under exceptional circumstances permitting her to exercise that mandate.
Despite these claims, the JSC affirmed that Mwilu’s conduct stemmed from legal ambiguity rather than misconduct and ruled that there was insufficient evidence to recommend her removal.
