British lawyer Khawar Qureshi will represent Director of Public Prosecutions Noordin Haji in a petition challenging charges brought against Deputy Chief Justice Philomena Mwilu.
Making the ruling yesterday, a bench of five judges said Prof Qureshi was properly appointed after he was issued with a practising certificate.
The judges noted that the law allows the DPP to directly procure special prosecutors, and Prof Qureshi’s brief was limited to Justice Mwilu’s case for three months.
Justices Hellen Omondi, Mumbi Ngugi, Francis Tuiyot, William Musyoka and Chacha Mwita at the same time allowed Senators James Orengo and Okong’o Omogeni to continue representing the DCJ in the case.
The judges said there was no evidence that the merit of the case was discussed when the DPP appeared before the Senate Committee on Justice and Legal Affairs.
The judges said that what was discussed had no bearing nor did id touch on the merit of the case before them. Justice Mwilu wanted Prof Qureshi barred from the case, arguing that his appointment was unconstitutional.
Attorney-General Kihara Kariuki had said Prof Qureshi is qualified to practice law in Kenya.
In the case, Mr Haji wants the Bench to determine if criminal proceedings can be initiated against a sitting judge and if, before the commencement of such criminal prosecution, it is constitutionally necessary to remove the judge from office.
Other issues concern whether the prosecution can institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge, despite knowledge and information of criminal conduct.
DCJ Mwilu, whose trial the High Court stopped, has challenged the charges brought against her. She and lawyer Stanley Muluvi were to face 13 charges on monies allegedly received from the collapsed Imperial Bank.
The State had instituted charges of abuse of office and failure to pay taxes, among others, against Justice Mwilu but she obtained orders stopping the case pending determination of the petition. Hearing is on February 18.