Two High court Judges Aggrey Muchelule and Said Juma Chitembwe have this morning Friday petitioned the court seeking orders to stop the DPP and DCI from further arresting or prosecuting them over ksh5 million bribery allegations.
In a certificate of urgency filed before Milimani Law courts, the two judges through lawyer Dunstan Omari wants the court to issue orders resting the state from further arresting or charging the two judicial officers in any court within the republic of Kenya.
"That the court be pleased to issue a conservatory order forthwith restraining the DPP and DCI their servants, agents or assistants from arresting, harassing, arraigning or charging the justices Muchelule and Chitembwe pending hearing and determination of the application," Omari says in the court documents.
The lawyer also wants the court to also issue an order barring the two judges from taking pleas in any criminal court within the jurisdictions until the petition is heard and determined
"That without doubt following the arrest, search and being required to record a statement, the prospective charges against the judges are likely to be commenced in abuse of the court process with the singular objective of embarrassing them and are otherwise oppressive, vexatious and harassing, "Omari says.
He further claims that following their arrest, search and requirement to record statements over baseless prospective charges now are likely to be levelled against the two charges, it is clear that the impugned criminal proceedings have been commenced with an ulterior motive and are malicious.
"That the court moves with speed and stops the arraignment and or formal charging of the applicants in the basis of the DCI spurious allegations, then the Independence of the Judiciary will henceforth be threatened with encroachment by the DPP and the DCI, " Omari argues.
Omari adds that no prejudice will be occasioned to any person if a stay order is granted barring the state from prosecuting the two Judges
He says that the petition by the two raises serious and fundamental constitutional issues that may affect the liberty and dignity of the two judges and has a high chance of success.
According to court papers, the two Judges say that the DCI officers searched their offices on Thursday without having a search warrant but nothing was found at their offices to link them to the bribery allegations facing them.
The move comes after the two judges were arrested at their chamber or office at Milimani Law Court by detectives from Directorate of Criminal Investigations (DCI) headquarters and taken to Kiambu road where they were reportedly grilled over bribery claims.
They however both denied knowledge of the allegations adding that their offices were searched but nothing was found.
“I am equally surprised like you are. They also questioned my clerk," Muchelule said.
Detectives from the DCI's Serious Crimes Unit (SCU) led by the head Obadiah Kuria had obtained a search warrant from a Magistrate Court to conduct the search
Muchelule, who was among the six judges the President rejected their appointment citing integrity issues, is currently attached to Milimani Family Division.
Justice Chitembwe was in April this year unsuccessfully interviewed for the position of Chief Justice to succeed David Maraga.
He is currently serving in the Civil Division of the High Court at Milimani. Chitembwe had been arrested in December 2009 by the anti-graft agency together with the former NSSF managing trustee, Rachel Lumbasyo. He was later acquitted.
The two were accompanied by their clerks and support staff who were later released, reportedly, unconditionally.
Before the Judges were taken to the DCI headquarters, officers conducted thorough searches in their offices.