High court says appointment of Philomena Mwilu as acting CJ was Illegal

The High court has ruled that the appointment of the Supreme Court judge Philomena Mwilu as the acting Chief Justice by former supreme court boss David Maraga was unconstitutional.

Justice Anthony Mrima said in the ruling that the capacity of appointing Mwilu as the acting Chief justice is non existent.

In short, His Lordship did not have the constitutional or legislative authority to authorize the DCJ to act as the Chief Justice as he did vide the impugned letter,” high court judge Anthony said.

David Maraga appointed Philomena Mwilu to act in his capacity on December 11 2022, awaiting his successor.

In the decision, Justice Mrima however declined to quash Section 5(4) and 5 of the Judicial Service Commission Act saying it is constitutional but it was enacted to take ensure there is seamless transition in case the Chief Justice is removed, dies in office or resigns before attaining 70 years. 

“In other words, whenever a Chief Justice is removed, dies or resigns before attaining the age of 70 or the ten years in office, the Deputy Chief or the most senior Judge in the Supreme Court, as the case may be, automatically acts as the Chief Justice,” Justice Mrima said.

The Judge added that DCJ Mwilu ought to have first taken oath of office, in an acting capacity. “A declaration hereby issues that the Deputy Chief Justice, the Hon. Lady Justice Philomena Mbete Mwilu, acted as the Chief Justice of the Republic of Kenya in contravention of the Constitution,” the Judge said.

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