The Director of Public Prosecutions Noordin Haji on Wednesday filed an urgent application seeking, among other orders, the transfer of a petition filed by Deputy Chief Justice Philomena Mwilu to the anti-corruption division of the High Court.
Through secretary of public prosecutions Dorcas Oduor, Mr Haji further told Justice Chacha Mwita that he was denied a chance to give his side of the story before Ms Mwilu was granted orders stopping her prosecution over alleged abuse of office.
Ms Oduor said that it is in the interest of justice and judicial harmony in decision-making for all anti-corruption and economic crimes cases to be heard in the same division.
But Justice Mwita said a hearing date had already been set in another application filed by Ms Mwilu, and it would be better if all the matters are addressed on that day. The two applications will now be heard on October 9.
According to Mr Haji, he stands to suffer substantial prejudice should the petition be heard before the issue of conservatory orders is addressed by all parties.
He said the orders suspending the trial before the lower court were extended before all parties canvassed.
He argued that the application raised fundamental issues that ought to be addressed before the hearing of the main case.
Ms Oduor further said that since she obtained the orders, nothing has been filed thereby denying Mr Haji a chance to address the issues she has raised in the petition.
Another application filed by Mr Haji is for the court to take the file to Chief Justice David Maraga for purposes of constituting a bench of five judges to hear the case.
In the application, Mr Haji said the petition raises substantial questions of law, which necessitates the constitution of an uneven number of judges.
Justice Mwilu stopped the intended prosecution last month at the High Court, arguing that the charges were deliberately calculated to subject her to public humiliation and embarrassment.
She also stated that the criminal charges were borne out of alleged threats issued by President Uhuru Kenyatta after the Supreme Court nullified his win last year.
She said that the motive is to remove her from office and the action by DPP is tainted with abuse of power and arbitrary exercise of authority.
She further said the move is meant to achieve a collateral purpose and not the rule of law or objective of the system of the administration of justice.
The DPP, however, said the charges are not malicious or brought in bad faith and they will demonstrate so when given the chance. The prosecution said the matter raises substantial questions of law and matters of public importance.
The State had lined up charges of abuse of office, failure to pay taxes, among others together with lawyer Stanley Muluvi Kiima.