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JSC clears Deputy Chief Justice Philomena Mwilu of misconduct in Gachagua impeachment petition

The Judicial Service Commission (JSC) has dismissed a petition seeking the removal of Deputy Chief Justice (DCJ) Philomena Mwilu over her role in the impeachment case of former Deputy President Rigathi Gachagua.

The petition, filed by Belinda Egesa, accused Mwilu of unlawfully appointing judges to hear the case and overstepping powers reserved for Chief Justice Martha Koome. She further alleged that Mwilu acted incompetently and violated the Constitution.

However, the JSC found that the petition fell short of the threshold required for the removal of a judge under Article 168 of the Constitution.

At the center of the dispute was Mwilu’s decision to empanel Justices Erick Ogola, Anthony Mrima, and Freda Mugambi to preside over the Kerugoya High Court case that challenged Gachagua’s impeachment and the swearing-in of Kithure Kindiki as his replacement.

While the Court of Appeal later ruled that Mwilu had acted beyond her mandate, the JSC determined that her decision was made in good faith due to legal uncertainty at the time regarding the extent of the Deputy Chief Justice’s powers.

In its May 9, 2025 ruling, the appellate court acknowledged that the law was unclear on whether a DCJ could act in the absence of the Chief Justice.

Egesa had argued that Mwilu’s actions had serious constitutional consequences, including the setting aside of conservatory orders that cleared the way for Kindiki to be sworn in. Her lawyers accused Mwilu of usurping the Chief Justice’s authority, citing the appellate court’s observation that she was not formally recognized as acting CJ nor operating under exceptional circumstances.

Despite these arguments, the JSC concluded that there was no evidence of deliberate misconduct. It ruled that Mwilu’s conduct was driven by genuine legal ambiguity rather than intentional constitutional violations.

This decision means that Justice Mwilu will continue serving as Deputy Chief Justice without facing removal proceedings.

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