The DPP yesterday said DCJ Philomena Mwilu is not immune from prosecution because the charges she faces are about her conduct as a state officer.
ODPP secretary Dorcas Oduor told Justice Chacha Mwita that all individuals, including Mwilu, are subject to the Constitution and the law without discrimination on the basis of class, status, gender or any other consideration.
Mwilu had said the charges to be pursued by the DPP arise out of three commercial lending transactions in the course of normal banking relations between her and the Imperial bank of Kenya and there are other remedies to it other than her prosecution.
But Oduor said what Mwilu and lawyer Stanley Kiima seek through the current petition is unconstitutional immunity or insulation against lawful prosecution.
She said the subject of the investigations that Mwilu seeks to stop is a matter of grave public importance and interest as it concerns the question of the conduct of public servants or state officers.
She urged the court to refer the matter to Chief Justice David Maraga to empanel an uneven number of judges as the case raises substantial matters of law.
“This petition raises a number of substantial questions of law and public importance, and fits being placed before the CJ for the empanelment of uneven number of judges preferably five,” Oduor said.
If the court finds that the matter warrants to be placed before a bench, the ODPP wants it to determine whether it can lawfully fail to commence criminal proceedings against a sitting judge without violating certain provisions of the Constitution.
The office also wants the court to determine whether they can proceed to institute criminal proceedings where the Judicial Service Commission has taken no action against a sitting judge of a superior court despite knowledge and information about the criminal conduct of the judge.
Also sought is whether in an exercise of the powers conferred upon it under the Constitution, criminal proceedings can be initiated against a sitting judge of the superior court and the legal obligations to be considered where criminal proceedings have been commenced against them.
Others are whether the criminal prosecution of a sitting superior court judge amounts to encroachment on the independence of the Judiciary and whether a decision to prosecute a judge can be faulted on account of political pronouncements that have no link to the subject matter of the criminal proceedings.
Mwilu, through lawyer Okong’o Omogeni, opposed the application, saying it does not demonstrate that the matter raises a substantial question of law.
He added that the questions can “readily be determined by a single judge of the High Court”.
He argued that the issues framed by the DPP erroneously suggest that the JSC has received a petition for her removal from office, or ought to have taken up the matter, upon the institution of criminal charges, but has failed to commence her removal from office.
“The DPP is pursuing an ulterior motive or extraneous purpose for seeking that the petition be referred to the CJ.
Justice Mwita will rule on Wednesday next week.