Court: Maraga violated law by appointing Muilu acting CJ

• Nov 16, 2021

Deputy Chief Justice Philomena Mbete Mwilu acted as Chief Justice of Kenya in contravention of the Constitution, the High Court has ruled.

The Court has further quashed the letter appointing Justice Mwilu to act as CJ saying: “The letter dated 11th December, 2020 by the then Chief Justice David Kenani Maraga granting authority to the Deputy Chief Justice, Lady Justice Philomena Mbete Mwilu, to act as the Chief Justice is unconstitutional, null and void.”

The Judgment was in reference to petition E408 of 2020 by Okiya Omtatah on the suitability of Lady Justice Philomena Mbete Mwilu acting as the Chief Justice in view of the several petitions seeking her removal from office as well as whether a retiring Chief Justice can appoint an Acting Chief Justice pending the recruitment and appointment of the next Chief Justice.

The Court ruled that an acting Chief Justice who ascends to office by virtue of Section 5(4) and (5) of the Judicial Service Act must take an oath of office as required under Article 74 of the Constitution.

The Court further directed that going forward, a succeeding Chief Justice must be appointed before the retirement of a serving Chief Justice.

“The Court has also been informed that there is a pending legislation in Parliament on the recruitment of a succeeding Chief Justice before the reign of a sitting Chief Justice expires, it is the Court’s hope that the legislation will be in place sooner,” the Court ruled.

According to the High Court, the tenure of the office of Deputy Chief Justice is not tied to that of the Chief Justice.

Therefore, the Deputy Chief Justice, the Hon. Lady Justice Philomena Mbete Mwilu, is at liberty to remain in office until retirement or otherwise ceases to hold the office.

The Court however dismissed prayers to quash all decisions Justice Mwilu may have made during her tenure as acting CJ saying: “It is the considered position of the Court that nullifying all the decisions made by the Deputy Chief Justice when acting as such will generally cause more detriment than the intended good.”