Chief Justice David Maraga will have to set up a bench to hear and determine the case in which his deputy Philomena Mwilu is challenging her prosecution.
High Court judge Enoch Chacha Mwita has ruled that because it is the first time a senior judge was arrested in the precincts of the court for possible prosecution since the promulgation of the new Constitution, the matters raised in the case need to be determined by a bench.
“I hereby certify this application as one raising a substantial matter of law, hence refer it to CJ for consideration of empanelling a bench to hear and determine it,” said Justice Mwita.
The Director of Public Prosecutions Noordin Haji had asked the court to have the matter referred to the CJ, arguing that the court needs to determine whether prosecution of a sitting superior court judge amounts to an attack on the Judiciary’s independence.
The DPP also wants the bench to determine whether criminal proceedings can be instituted against a sitting judge and whether independent bodies can be curtailed from exercising their mandate.
DCJ Mwilu moved to court to challenge her criminal prosecution.