Director of Public Prosecutions Noordin Haji wants a five-judge bench to determine a case filed by Deputy Chief Justice Philomena Mwilu, who halted her prosecution last week.
Senior prosecutor Lilian Ogwora said the petition raises substantial questions of law, which necessitate the constitution of an uneven number of judges.
Justice Mwilu went to the High Court last week, arguing that the charges were calculated at humiliating and embarrassing her.
She said the criminal charges were borne out of the threats issued by President Uhuru Kenyatta after the Supreme Court nullified his poll victory last year.
According to Ms Mwilu, the motive is to remove her from office.
She said the action by Mr Haji is tainted with abuse of power and arbitrary exercise of authority.
Justice Mwilu added that the case is meant to achieve a collateral purpose and not the rule of law.
However, Mr Haji said the charges are not malicious.
In the petition filed under certificate of urgency on Friday, Ms Ogwora said the prosecution is worried about a possibility of judges arriving at conflicting decisions.
According to Mr Haji, the case sought to be stopped is a matter of grave public importance, which concerns the conduct of State officials.
Ms Ogwora said the case should be placed before Chief Justice David Maraga for the constitution of a bench of preferably five judges.
“Considering the gravity of this matter, it would be proper and just to have all preliminary issues canvassed before October 9,” she said.
REMOVAL FROM OFFICE
Among the issues Mr Haji wants addressed are the legal obligations under Article 3, read together with Chapter 6 of the Constitution, where a judge or any other constitutional office holder who enjoys security of tenure is taken to court.
He wants the court to determine if criminal proceedings can be initiated against a sitting judge of superior courts and whether it is constitutionally necessary to remove the judge from office before the commencement of prosecution.
The other issue to be considered by the bench is whether the prosecution can proceed to institute criminal proceedings where the Judicial Service Commission (JSC) has taken no action against a sitting judge despite knowledge and information about the conduct of the said judge.
And from the complaints made against the DPP, Mr Haji wants the court to determine if a criminal prosecution of a judge amounts to encroachment on the independence of the Judiciary.
CHARGES AGAINST MWILU
The determination, he said, would have an effect on the performance of the constitutional mandates of the DPP, the Directorate of Criminal Investigations, the Ethics and Anti-Corruption Commission, Kenya National Commission on Human Rights, Commission on Administrative of Justice and the JSC.
The state lined up charges of abuse of office, failure to pay taxes, among others against Justice Mwilu but she obtained orders stopping the case.
She was to be charged together with Mr Stanley Muluvi Kiima, a lawyer, who has been enjoined as an interested party in the petition.
In the application at the High Court, Justice Mwilu said the petition raises serious issues that may affect her liberty and dignity.
The High Court directed the case to be heard on October 9, but the DPP wants it to be brought forward.