Court rules Maraga appointment of Mwilu as acting CJ was illegal

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 said by appointing Mwilu in an acting capacity, the outgoing Chief Justice purported to exercise powers that were 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,” the Judge said.

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

The court, however declined to quash the decisions made by DCJ Mwilu while acting as the CJ saying it will cause more harm than the intended good. The decisions include appointing High Court judges to hear cases where there is more than two judges and admission of advocates. 

Activist Okiya Omtatah had challenged the letter by Justice Maraga saying he did not have powers to appoint DCJ Mwilu as the acting Chief Justice. 

The retired CJ was scheduled to proceed on terminal leave from December 11, 2020 to January 12 and subsequently retire. But before leaving office, he gave the DCJ the authority to be the Acting Chief Justice.

Mr 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.

Justice Mrima further ruled that there must be legislation providing for the recruitment of a Chief Justice before the term of office of the incumbent expires either on attaining 70 year or upon serving ten years as a Chief Justice, as required.

Parliament, the court was told was already in the process of enacting the law. 

“A succeeding Chief Justice must be appointed before the retirement of a serving Chief Justice,” the Judge said adding that the tenure of the Deputy Chief Justice is not tied to that of the Chief Justice.