Deputy Chief Justice Philomena Mwilu's lawyer Stanley Kiima wants the High Court to stop his prosecution.
Kiima was charged alongside Mwilu but a five-judge bench quashed charges against the judge.
He is apprehensive that if the court does not intervene, the Director of Public Prosecutions will proceed with the case against him. The case is scheduled for mention tomorrow.
Mwilu faced 13 counts, seven of which were related to failing to pay about Sh12 million stamp duty to the Kenya Revenue Authority. She allegedly committed the offences between 2013 and 2016.
On August 27, last year, police officers raided Kiima's office and confiscated files and documents relating to matters he was handling for Mwilu.
Police informed him that they were investigating the judge. They also arrested him.
However, the DCJ declined to take a plea and opted to challenge the case against her before the High Court.
On May 31, a bench quashed the charges against Mwilu saying the manner in which the evidence against her was obtained was wanting.
Kiima says the judges did not substantively determine the legality of the charges.
He believes his continued prosecution is an illegality and a violation and contravention of his fundamental rights. "The entire criminal trial is already compromised," he maintains.
Most importantly, he says, the evidence the prosecution intends to rely on in his case has been declared illegally obtained.
"The respondents (DCI and DPP) illegally gained access to privileged materials 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.
The charge against him, he avers, arises from 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 noted that 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 a commercial transaction. The penal system was not fashioned for that purpose."
The lawyer wants the court to stop the DPP from prosecuting him.
(Edited by R.Wamochie)
