By Kurian Musa
Having covered court proceedings as a journalist, I wish to wade my street thoughts into the corridors of justice over the recent ruling that Deputy Chief Justice (DCJ) Philomena Mwilu erred in empanelling a three-judge bench to hear the impeachment process of Deputy President Rigathi Gachagua.
As per Article 163(1) of the Constitution, the Supreme Court consists of the Chief Justice, who is the President of the Court, the Deputy Chief Justice, who is the Vice President of the Court, and five other Judges. This composition is not symbolic—it is foundational to Kenya’s judicial order.
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DCJ Mwilu is, therefore, a substantive judge of the Supreme Court.
Like her peers, she has jurisdiction over all matters properly before the Court.
In the landmark case Jasbir Singh Rai & 3 others v Tarlochan Singh Rai Estate & 4 others [2013] eKLR, the Supreme Court made it clear that all judges of the Court hold equal status in decision-making and the exercise of judicial authority.
There exists no constitutional or statutory basis to suggest that the DCJ’s jurisdiction differs from the rest of the bench.
If a matter such as the impeachment of a sitting Deputy President is properly filed and falls within the constitutional mandate of the Court, then it is well within her powers to take necessary administrative actions, including empanelling a bench.
The recent ruling that DCJ Mwilu “erred” in forming a three-judge bench has sparked legal and public debate.
But one cannot help but ask: is this not a smoke ang’owa ? A smoke screen?
Temple of justice
Precisely. Any objection to her jurisdiction, in light of the clear constitutional framework and judicial precedent, appears less about upholding the law and more about shifting the spotlight.
It risks being perceived as a calculated move to delay or delegitimize proceedings concerning a matter of grave national interest.
Let us be honest: the law is not about personalities. It is about institutions, processes, and fidelity to the Constitution.
The DCJ does not act out of whim but within the boundaries of the law.
If the Constitution accords the Chief Justice and Deputy Chief Justice administrative roles, including empanelling benches where necessary, then second-guessing such acts should be grounded on more than political undercurrents.
The courtroom is not a theatre of distractions—it is a temple of justice.
And when the law vests equal authority in all Supreme Court judges, it means just that.
The Constitution does not blink; it stands firm, even in the face of smoke screens.
Let us clear the air and focus on the real issues before the court.
Justice must not only be done—it must be seen to be done, without fear, favour, or fog.
- Kurian Musa is a journalist and policy student passionate about law, governance, and communication, currently based at Egerton University.
