The Director of Public Prosecution now wants high court to determine whether judges are immune to criminal prosecution over acts committed outside the court of duty.
He moved to court under a certificate of urgency seeking to have case filed by Deputy Chief Justice Philomena Mwilu be heard by an even number of judges.
He also want the court to decide whether a decision to prosecute a judge can be faulted on account of political pronouncements by the political leaders that have no nexus to the subject matter of the Criminal proceedings has been raised as an issue for determination.
Prosecution want court to determine is whether Judicial Service Commission (JSC) can proceed to initiate proceeding against Mwilu and if they fail to take action against a sitting judge what recourse is open in law to public where the subject matter affecting the judge is of a criminal nature.
The judges if appointed have also been asked determine whether in exercise of the powers conferred to the officer of DPP, criminal proceedings can be initiated against a sitting judge of the Superior courts.
“The court should also determine whether the DPP can proceed to institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge despite knowledge and information about the criminal conduct of the judge,”reads the application
“Whether the criminal prosecution of a sitting superior court judge amounts to encroachment on the independence of the judiciary”
In the application Senior Principal Prosecution Counsel Lilian Ogwora says that the petition raises substantial question of law that are of public importance that merit certification for hearing by uneven number judges.
“That in the interest if justice and in the general public that the orders sought in this application are granted by this court” reads the petition.
He argues that Mwilu seeks to stop a matter of grave public importance and interest since it concerns the question of conduct of public servants and state officers.
In the affidavit by Ogora ,the DPP notes that Mwilu is seeking several prayers which have severe implication on the powers of his office adding that there are several pertinent question that court should determine when the petition will be heard.
He avers that some of the issues for determination include whether his office can lawfully fail to commence criminal proceedings against a sitting judge without violating the provisions of Article 157 of the constitution.
