The Deputy Chief Justice Philomena Mwilu will be headed for a fresh court battle after the stay orders suspending her prosecution expire on Tuesday, 9, 10, 2018.
The Director of Public Prosecution Noordin Haji is seeking to reopen her case with the application to have a three-judge-bench constituted to determine her immunity to the law.
In the supplementary submission to the High Court on Monday, the ODPP is seeking clarification on constitutional issues raised by Mwilu defence team when opposing her prosecution.
The ODPP in is also seeking to have the judges lift the stay orders to allow the prosecution of Mwilu on accusations of abuse of office and implication in fraud.
The prosecution argues that the issuance of the stay orders was rushed and that there was no urgency or irreparable harm that warranted High Court Judge Chacha Mwita to issue the orders whose span lapses today.
Key on the DPP's submissions is a pursuit for clarification from the judges-bench on the "meaning and effect" of the constitutional provisions relating to the role of the DPP and the process of removing a judge from office.
While Justice Mwilu prefers her case being handled by the Judicial Service Commission, the DPP has opposed the push saying JSC was not mandated to be an alternative to court processes.
"It is simply wrong for Justice Mwilu to conflate the question of alleged criminal conduct, which can only be determined by a criminal court, in open court, with the authority of JSC. The JSC was not established as an alternative to due process before the courts," says the ODPP in its new submissions on Monday.
On Friday, the Judicial Service Commission received a petition seeking to have Justice Mwilu removed from office over her alleged involvement in questionable bank transactions.
A citizen, Mr Mogire Mogaka petitioned JSC seeking to have Mwilu ousted for being "unfit to be in office due to her alleged involvement in suspicious bank transactions."
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