The Director of Public Prosecutions Keriako Tobiko has ordered the prosecution of suspended Deputy Chief Justice Nancy Baraza.
In a statement, Mr Tobiko said his office had approved Lady Justice Baraza's prosecution over an incident in which she is accused of assaulting a security guard at the Village Market in Nairobi.
Mr Tobiko said he had appointed his deputy Dorcas Oduor and Alexander Muteti, the principal prosecuting counsel to prosecute the case.
The DPP's move came as the suspended DCJ said she will appeal the tribunal's recommendation to kick her out of office.
A member of her defence team, who represented the DCJ during the hearing, Kioko Kilukumi said that Lady Justice Baraza will file an appeal against the decision to remove her Thursday.
“Our client has made up her mind. She will file an appeal tomorrow (Thursday),” Mr Kilukumi said on the telephone.
Ms Baraza met with her lawyers Wednesday and arrived at the decision that the Constitution permits her to pursue an appeal.
On Monday, the tribunal chaired by retired Chief Justice of Tanzania Augustino Ramadhani delivered its findings to President Kibaki before announcing the decision to the public.
It found Lady Justice Baraza guilty of gross misconduct and misbehaviour.
“The tribunal members having unanimously found that the conduct of the DCJ on December 31, 2011 at the Village Market amounted to both gross misconduct and misbehaviour, recommend to President Kibaki that Lady Justice Nancy Makokha Baraza be removed from office,” said the tribunal.
The judge was accused of assaulting Mr Rebecca Kerubo, a guard at the shopping mall on December 31 last year. The incident sparked public uproar prompting the JSC chaired by Chief Justice Willy Mutunga to petition the President to suspend and form a tribunal to look into her conduct.
The seven-member tribunal heard evidence from eight witnesses and found discrepancies in Justice Baraza’s testimony. The tribunal said Ms Kerubo had been a “credible witness” who confidently and steadfastly gave her evidence when she was cross-examined.
“We were not impressed by the evidence by the DCJ,” the tribunal said.
"For instance, the judge claimed that the guard followed her into Belladona Pharmacy and used disrespectful language. But Ms Kerubo disputed this and was backed by Dr James Wathigo the pharmacist, who said the guard only told Ms Baraza that she needed to search her."
The Supreme Court, chaired by Dr Mutunga, with only five members after suspension of Ms Baraza and dismissal of Justice Mohammed Ibrahim by the Judges and Magistrates Vetting Board, will have to deliberate on the appeal and decide on the fate of the suspended DCJ.