Director of Public Prosecution Noordin Haji will challenge the "apparent discrimination" in law that allows the immediate suspension of public officers, not State officers, charged with criminal offences.
Mr Haji announced this in a statement on Tuesday following the High Court's November 1 decision for National Land Commission chairman Muhammad Swazuri to remain in office.
Prof Swazuri was charged in August alongside 11 people over a standard gauge railway scam concerning compensation for land for the construction.
The office of the DPP filed a notice of appeal on November 2 but could not pursue it as the proceedings it applied for that day were not ready.
Mr Haji's office therefore filed an application on November 16 for the High Court order to be stayed.
On December 4, the court declined to suspend the order but directed Mr Haji's office to turn to the Court of Appeal for any desired orders.
After the proceedings were availed on Monday, the DPP instructed his team to prepare documents necessary for its appeal.
On Tuesday, Mr Haji suffered a blow after the High Court declined to review the order that allowed Mr Swazuri to access his office.
The DPP had wanted Justice Hedwig Ong’udi to review her order pending the determination of their appeal.
Through Senior Assistant DPP Alexander Muteti, he had argued that allowing him to access his office while facing serious charges was discriminatory because other public officers, who are not constitutional office holders, are required to step aside.
Justice Ong’udi said that since the DPP was not satisfied with the ruling, it was better to pursue the appeal as the appellate court will consider whether they have an arguable case.
“I would have quickly reviewed the orders had the applicant shown that the conditions placed by the court had been violated,” she said.
The DPP will now challenge the apparent discrimination under section 62 (5) of the Anti-Corruption and Economic Crimes Act, that said pits public officers against State officers.
Mr Haji noted that according to this law, the former can be suspended immediately while the latter can continue to service irrespective of charges over criminal offences.