Court rules Mwilu’s appointment as acting CJ unconstitutional

The High Court has ruled that retired Chief Justice David Maraga acted contrary to the constitution by appointing Deputy Chief Justice Philomena Mwilu as the acting CJ in December last year.

Justice Anthony Mrima ruled that the tenure of the office of Deputy Chief Justice is not tied to that of the Chief Justice.

He said by appointing Mwilu in an acting capacity, the outgoing Chief Justice purported to exercise powers that were non-existent.

“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,” he ruled.

According to the High Court, the tenure of the office of DCJ is not tied to that of the Chief Justice, therefore, Mwilu, is at liberty to remain in office until retirement or otherwise ceases to hold the office.

The Court ruled that an acting CJ 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.

However, Mrima 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.

Justice Maraga appointed Justice Mwilu on December 11, 2020 to act as the CJ, pending the appointment of his successor.

“..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,” he said.

This comes following Activist Okiya Omtatah moved to court to challenge Maraga’s  letter saying he did not have powers to appoint Mwilu as the acting Chief Justice.

Omtatah argued that it is only JSC under Article 166(1)(a) of the Constitution, that could recommend to the President the appointment of the Chief Justice.

JSC defended the move saying the Deputy Chief Justice will only act as Chief Justice for six months pending the appointment of a new chief Justice, a move that is meant to forestall a crisis in the Judiciary in the event the office of the Chief Justice falls vacant.

Maraga appointed Mwilu on December 11, 2020 to act as the CJ, pending the appointment of his successor.