The Director of Public Prosecution Noordin Haji will today seek the establishment of a three-judge bench to determine if Deputy Chief Justice Philomena Mwilu is "above the law".
The High Court temporarily stopped criminal proceedings against the judge, who is facing several charges including using her office to receive Sh12 million from Imperial Bank.
She allegedly did so without proper paperwork between August 15 and October 23, 2013.
Supplementary submissions filed Monday at the Constitutional and Human Rights Division of the High Court say Mr Haji will seek determination of constitutional issues raised by Ms Mwilu, "with an estimated time of two days of hearing".
The submissions by Public Prosecutions Secretary Dorcas Oduor also say Mr Haji wants the bench to dismiss the stay order.
The State argues there was “no irreparable harm, let alone urgency” which required High Court Judge Chacha Mwita to grant the order that expires today, and which prevented the DPP from charging Ms Mwilu with a criminal offence at the Magistrate’s Court.
On August 29, a day before her plea-taking, Justice Mwita of the Constitutional and Human Rights Division blocked the criminal proceedings to allow resolution of issues on constitutionality of the charges.
The DPP wants the bench, if constituted, to determine “the meaning and effect” of constitutional provisions relating to the role of the DPP and the process of removing a judge.
“Grounds for seeking the stay are not sustainable,” Mr Haji says in the affidavit.
Ms Mwilu argued that she can only be charged “should the Judicial Service Commission (JSC) petition the president to form a tribunal and a recommendation for removal thereby made”.
Mr Haji notes: “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 the JSC. The JSC was not established as an alternative to due process before the courts.”
Meanwhile, city lawyer Adrian Kamotho Njenga and the Federation of Women Lawyers have sought to join the case and protect Ms Mwilu from prosecution.
Mr Njenga termed the charges “fictitious, flawed, unlawful and in blatant abuse of the legal process”. He said the trial will lead to a grave miscarriage of justice.
Additional reporting by Maureen Kakah