Deputy Chief Justice Philomena Mwilu's lawyer has asked the High Court to stop his prosecution.
Stanley Muluvi Kiima was charged alongside Mwilu, but a five-judge bench quashed charges, leaving his fate hanging in the balance.
He said he is apprehensive that if the court does not intervene, the DPP will proceed with the case against him.
On August 27, 2018 police raided his office and confiscated files and documents relating to matters he was handling for Mwilu.
The police informed him that they were investigating the judge. They also arrested him and he was later charged together with the DCJ.
However, the DCJ declined to take a plea and opted to challenge the case against her before the High Court.
On May 31, 2019 a five-judge bench quashed the charges against Mwilu, saying the manner in which evidence was obtained was illegal.
Kiima said the judges did not substantively determine the legality of the charges.
The lawyer said his continued prosecution is an illegality and it constitutes a violation and contravention of his fundamental rights and that the entire criminal trial is already compromised.
He said the evidence the prosecution intends to rely on in his case has already been declared illegally obtained.
"The respondents (DCI and DPP) illegally gained access to privileged material and thus have had an unfair advantage over the petitioner in the prosecution as they have compromised and jeopardised his right against self incrimination and adducing evidence of his choice," he told the court.
Kiima also said the charge against him arise out of his engagement and employment as an advocate hence it constitutes an affront to the independence of the bar.
"As a lawyer in the normal undertaking of his business, the petitioner is authorised to take and carry out instructions from clients and ought not to be victimised for doing so," he said.
He also said the charges against him are founded on transactions that were purely commercial in nature and as such it is not the duty of the DPP and DCI to enforce contractual obligations.
"The criminal justice system is grossly inadequate as a means of resolving disputes of a commercial nature or determining the obligations of parties in commercial transaction.The penal system was not fashioned for that purpose," he added.
