An appeal by the Director of Public Prosecutions (DPP) challenging a decision barring the State from arresting or prosecuting Mombasa Governor Hassan Joho over his academic credentials failed to proceed for hearing.
The Court of Appeal was told that Governor Joho's lawyer, Senior Counsel James Orengo, was handling another case at the Supreme Court.
Appellate judges Alnashir Visram, Martha Koome and Daniel Musinga directed the parties to book another hearing date at the registry.
Last month, the case met obstacles after Justice Wanjiru Karanja recused herself. She was replaced by judge Musinga.
Senior Assistant DPP Alexander Muteti wants his appeal allowed and the judgment by judge Eric Ogola dismissed entirely.
"The judge misdirected himself in law by finding and holding that the appellants (DPP, Attorney General and Police) appear to have been acting at the direction of the President and their actions were calculated to execute an executive order," Mr Muteti said.
Mr Muteti further argues in his memorandum of appeal that judge Ogola misunderstood the purpose of criminal investigations undertaken against Mr Joho as being geared towards preventing him from contesting the governorship post.
He also claims that the judge misdirected himself in finding that Mr Joho was being discriminated against on account of his political views, which were neither pleaded nor conversed before him by either parties.
"The judge erred in law by prohibiting the DPP from exercising his constitutional powers without any evidence that he exceeded his powers to warrant intervention by court."
Additionally, Mr Muteti says that justice Ogola misdirected himself in law by holding that there has been escalation of further investigations with the intention of charging Mr Joho with various offences such as tax evasion and forging academic papers.
In his October 2017 judgment, judge Ogola said the investigations were ill-timed, politically instigated and that the intended prosecution was not consistent with constitutional values.
He wondered why a complaint against the governor over an alleged forged examination result slip was made last year yet there was a similar complaint over fraudulent acquisition of a degree certificate made in 2013.
In his petition, Mr Joho had sued the Inspector General of Police, Director of Criminal Investigations, DPP and the AG.