DCJ Mwilu faces fresh ouster petition over Gachagua impeachment bench

A fresh petition seeking the ouster of Deputy Chief Justice Philomena Mwilu has been filed at the Judicial Service Commission (JSC) over allegations that she usurped the powers belonging to Chief Justice Martha Koome when she assigned judges to the impeachment case against the former Deputy President Rigathi Gachagua.

The petition comes barely two weeks after Mwilu and other judges of the Supreme Court, got a temporary reprieve on another bid to kick them out of office.

In the petition filed and received by the JSC on Tuesday, the petitioner, Belinda Egesa, a Nairobi resident, wants DCJ Mwilu kicked out of office, for alleged violation of the Constitution, gross misconduct and incompetence, among other grounds.

The DCJ, who set up a panel of 3 judges—Justices Eric Ogolla, Anthony Mrima and Lady Justice Dr. Freda Mugambi—to hear the impeachment case of the former DP Gachagua, has been accused of overreaching.

The petitioner gave several grounds for Mwilu’s removal, including: violation of the Constitution, gross misconduct, incompetence, contravention of the Judicial Code of Conduct and Ethics 2020, among others.

“The Deputy Chief Justice acted in excess of her mandate under Article 165 (4) by unlawfully empaneling a High Court bench on the 18th October, 2024. This was a direct usurpation of the Chief Justice’s constitutional role,” argued the petitioner.

The petitioner finalized with a call to the JSC to find DCJ Mwilu guilty of the charges and begin her dismissal procedure.

"JSC should recommend to the President under Article 186 to remove her from office… this will safeguard the credibility of the judiciary," Suleiman Bashir, Egesa’s lawyer, stated in the petition.

The new push comes barely 4 days after the Court of Appeal quashed the move by DCJ Mwilu to empanel the bench, which cleared the way for the swearing in of Prof. Kithure Kindiki as Deputy President.

The petition also comes just two weeks after the DCJ, alongside the other 6 judges of the Supreme Court secured a reprieve in a separate case seeking their ouster.

In its decision, the High Court blocked the JSC from initiating disciplinary proceedings against the apex court judges, who have been under intense pressure in recent days.