Director of Public Prosecutions Noordin Haji has filed an application seeking to bar Senator and Senior Counsel James Orengo from representing Kenya Ports Authority (KPA) managing director Daniel Manduku on account of conflict of interest.
The DPP wants the court to find and hold that the continued appearance of Mr Orengo or any other State officer in a petition filed by Dr Manduku is against the letter and spirit of Chapter Six of the Constitution.
Dr Manduku, who is represented by Mr Orengo, is seeking to stop the DPP from instituting any charges against him based on investigations report of the Directorate of Criminal Investigations.
Through senior assistant DPP Alexander Muteti, Mr Haji also wants Dr Manduku ordered to engage a lawyer who is not a State officer.
Mr Muteti argues that Mr Orengo is the elected Siaya Senator thus a full-time State officer not required to engage in any other gainful employment.
"Though the respondent (Mr Orengo) is entitled to practise law, such practice should not conflict with the public interest that he is under duty to protect," he argues in his application.
In his replying affidavit, Mr Orengo said the Advocates Act and the Law Society of Kenya Act do not bar a sitting MP, who is also an advocate, from practising law. “I represent the first interested party in my capacity as an advocate and an officer of this court in accordance with section 55 of the Advocates Act,” he said.
Mr Muteti said Dr Manduku is accountable to the public in the manner he deploys and utilises public funds and he is answerable to Parliamentary committees that oversight public accounts and investments.
He further argues that Mr Orengo holds the office of Minority Leader in the Senate and, under the constitution, the Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or the Deputy President.
"Both Houses of Parliament oversight the executive arm of government to which the KPA falls," said Mr Muteti who is prosecuting the application alongside counsel Chrissy Mwenda.
Mr Orengo argues that the application by the DPP did not demonstrate how his representation of Dr Manduku is in conflict of interest with his role as a Senator.
Mr Orengo further said he had not participated in any parliamentary debate or committee proceedings concerning Dr Manduku.
He said the DPP seeks to bar him based on his status as a legislator, which is in contravention of Article 27 of the constitution which prohibits discrimination on any ground.
The application by the DPP was to be argued yesterday before Justice Eric Ogola sitting in Mombasa but was adjourned to March 4.
The judge directed parties to file any affidavits and authorities they intend to rely on, seven days before the hearing date.