The High Court has on Tuesday extended orders barring the prosecution of Deputy Chief Justice (DCJ) Philomena Mwilu until next week.
Justice Chacha Mwita said he will rule on a petition seeking the formation of a three-judge bench to determine whether the DCJ should be prosecuted over alleged abuse of office on October 17.
Director of Public Prosecutions Noordin Haji argued that Ms Mwilu's petition is likely to determine whether judges are immune from prosecution, hence the case should be heard and determined by at least three judges.
Under Kenyan law, cases that raise queries over the Constitution and require its interpretation are usually determined by at least two judges selected by the Chief Justice. A single judge can, however, determine such matters but after consulting the Chief Justice.
Mr Haji said Ms Mwilu's petition will answer the question of whether there is a difference between a crime committed by a judge and that committed by an ordinary citizen.
Lawyer Okong'o Omogeni, who is defending Ms Mwilu, said Mr Haji has abused his powers by charging the DCJ over a commercial transaction.
Mr Omogeni has opposed Mr Haji's plea to refer the case to Chief Justice David Maraga for the creation of a three-judge bench to determine Ms Mwilu's application to quash the criminal case.