Justice Chacha Mwita has referred the petition by Deputy Chief Justice Philomena Mwilu challenging her prosecution to Chief Justice David Maraga following an application by the Director of Public Prosecution Noordin Haji who had raised issues he said required determination by an uneven number of judges.
Justice Mwita wants CJ Maraga to constitute a bench to hear the matter.
Among issues raised include whether or not criminal proceedings can be instituted against a judge of Mwilu’s stature.
Mwilu has challenged her prosecution terming it an attempt to criminalize and otherwise civil matter.
She successfully moved a Magistrate’s Court to stay her prosecution pending the determination of a petition she lodged at the High Court.
Once constituted, it is expected that the prosecution will move the bench to lift orders by a magistrate court staying Mwilu’s prosecution.
Mwilu faces charges of abuse of office pressed against her by the DPP.
Mwilu was arrested for alleged corruption, failure to pay tax and improper dealings with Imperial bank, now in receivership.
Mwilu has so far denied all 13 charges levelled againt her before Anti-Corruption Court. One charge relates to receiving Sh 12 million from Imperial Bank.
Mwilu was at the centre of the unprecedented nullification of President Uhuru Kenyatta’s election last year, a decision that Uhuru vowed would be revisited. She kept asking probing questions that often caught lawyers flat-footed.
DPP Haji has denied allegations that his decision to prosecute the DCJ was influenced by someone, insisting that his office is independent.
Mwilu becomes the topmost judge to be arrested and face prosecution. DPP Haji has termed the evidence against her as “sufficient with a reasonable prospect of conviction”.