In 2017, Deputy Chief Justice Philomena Mbete Mwilu became a viral meme video. During the presidential election petition which resulted in the annulment of President Uhuru Kenyatta’s election, Mwilu caught the respondent’s lawyers flat-footed with a poignant question as to where unmarked ballot papers went. Did the voters leave the polling station with them, or where do the ballots vanish?
In a situation where a voter is issued with six ballot papers – one to vote for President, another for Governor, the next one for Senator, then Women Representative, then Member of Parliament and lastly Member of County Assembly – colour-coded and earmarked for voting for the six different positions, what happens to the five ballot papers when the voter chooses to only vote for one elective position, since the case was that those five ballot papers couldn’t be accounted for. It was a simple question.
None of the learned friends could muster a rejoinder.
That “You have six ballots, you vote for one, where do the rest go?” became christened The Mwilu Question, and has been framed as The Mwilu Question during the hearing of the 2022 presidential election petition. The soft spoken yet firm Deputy Chief Justice spoke both legalese and algebra.
It had happened that a year earlier, Mwilu had found herself in yet another viral numbers moment, but this time round she was not the one on the serving end. During her interview for the position of Deputy Chief Justice in 2016, Mwilu, and cleverly so, outwitted the Judicial Service Commission when she was asked about her stance on polygamy versus monogamy. “Christians such as myself who are Catholics, will say that you cannot have two women. That’s for my faith,’’ Mwilu said. ‘‘But the law says you can have two wives.” she said. To Mwilu, legally, 1+1 = 2. But spiritually, 1+1 = 1.
Surprisingly, and on her own admission, Mwilu wasn’t always a numbers person. At Limuru Girls High School, Mwilu’s Mathematics teacher had remarked something in the lines of Mwilu being “foolish in Maths”. It took the intervention of her then school head girl, with whom she did a crash Maths programme, to help Mwilu prove her teachers wrong and eventually ace her algebra. Yet nowadays Mwilu is the numbers person.
The third to hold the position of Deputy Chief Justice—having succeed Justice Kalpana Rawal who had to retire having attained the age cap of 70— Mwilu’s 38 year legal run began after she graduated from the University of Nairobi with an LL.B, after which she went to the Kenya School of Law for her diploma in legal practice, as is mandatory to all advocates of the High Court. Mwilu was admitted to the bar in 1984, after which she joined Muthoga Gaturu and Company Advocates, then Mutunga & Company Advocates. Mwilu’s boss, Dr. Willy Mutunga, rose to become Chief Justice in 2011.
Mwilu’s next stop was the corporate world, which she ventured into after her appointment by Jubilee Insurance Company as a Senior Legal Officer in 1991, a role she held for eight years. Mwilu exited the company in 1999, when she joined the Electricity Regulatory Board (ERB) as Board Secretary. Seven years later, Mwilu took over as Deputy Chairperson of the Energy Tribunal, before exiting the energy sector in 2007 when she was appointed a director at the Nairobi Water and Sewerage Company.
That same year, the Judiciary came calling, and Mwilu was appointed as puisne judge (a judge without a distinction or title) and deployed to the Commercial Division of the High Court in Nairobi and later in Eldoret. While in Eldoret, Mwilu noticed that a number of magistrates had a drinking problem, and so she creatively devised ways in which the judicial officers could get assistance without stigma. Mwilu’s Eldoret tour ended in 2011, when she was first reassigned to head the Criminal Division and subsequently the Environment and Land Division of the High Court in Nairobi.
And in November 2012, a few short years after joining the bench—five if we are splitting hairs—the mother of four was elevated to the Court of Appeal, where she served for four years before ascending to the Supreme Court as Deputy Chief Justice. The following year, 2017, Mwilu was elected by her colleagues to represent the Supreme Court at the Judicial Service Commission, and was simultaneously appointed to serve as the Judiciary Ombudsman and Chair of the Implementation Monitoring Committee of the Sustaining Judiciary Transformation (SJT) strategic blueprint.
It was at the end of that year that Mwilu sat in the Supreme Court bench that nullified Uhuru Kenyatta’s win, thanks to The Mwilu Question among other factors. The net effect of The Mwilu Question was that if there was a disparity between votes garnered by the president and those received by the other five elective seats to be voted for in the same election – and those five unmarked ballots cannot be traced – then it means there must have been some monkey business in upping the numbers for the presidential candidate(s). Mwilu, Chief Justice David Maraga and two other justices annulled the vote.
But as the fate would have it, Mwilu was befallen by the ill-luck that had gripped the office of the Deputy Chief Justice, first when DCJ Nancy Baraza was ousted for assaulting a security guard, and second when DCJ Kaplan Rawal tried in vain to challenge a verdict on the retirement age of judges, wanting to extend her stay in office. Mwilu was arrested in August 2018 on suspicion of corruption, tax evasion, abuse of office and improper dealings with a bank. High Court Judge Chacha Mwita however, suspended the criminal charges, citing that the charges were of a civil and not criminal nature.
Since misfortunes don’t come singly, when former Chief Justice David Maraga announced he was taking leave pending his retirement in January 2021, Maraga divulged that Mwilu would take over as Acting Chief Justice until a new CJ was appointed to succeed him. Activist and current Busia Senator Okiya Okoiti Omtatah would have none of it, and so he petitioned the High Court to quash Mwilu’s seconding until she was cleared of the earlier mentioned charges. In November 2021, the High Court quashed attempts at removing Mwilu from office over allegations of misconduct. Consequently, Mwilu acted as Chief Justice for six months, until Martha Koome was appointed Chief Justice in May 2021.
In a somewhat farcical twist of fate, Okiya Okoiti Omtatah is one of the petitioners in the 2022 presidential election petition, his case being a purely numbers game. Omtatah would wish to have Mwilu, the numbers person on the bench, to look at him with sympathetic eyes.
Having nullified her first ever presidential election petition, there is no prize for guessing whether Mwilu will nullify president-elect William Ruto’s election if she finds sufficient grounds to do so. After all, The Mwilu Question arose during the hearing, albeit not as prominently as it did in the 2017 case.
(Additional Reporting By Kanyi Wyban)