Mr Ojienda, a senior counsel, is set to be charged with fraud over alleged Sh89m he received as legal fees from Mumias Sugar Company.
Director of Public Prosecutions Noordin Haji has said Court of Appeal judge Prof Otieno Odek will be used as a prosecution witness against Prof Tom Ojienda, who is to be charged with falsely obtaining money from Mumias Sugar Company.
Mr Haji said Justice Odek was a partner in the firm of Professor Otieno Odek – Professor Tom Ojienda and Wanyama Advocates.
He said investigations into the matter have been concluded and a decision to charge Mr Ojienda made on the basis of the available evidence.
"Indeed, Professor James Otieno Odek was not in any way involved in the matters giving rise to the prosecution of Professor Tom Ojienda and is therefore not criminally culpable," the statement said.
The DPP said Justice Odek is not under any active investigations in connection with the affairs of Mumias Sugar Company and has offered a statement to the investigators.
"Following our analysis of the statement provided by the Judge, we have decided that he shall be a prosecution witness in the case against Professor Tom Ojienda," he said.
Mr Haji said his office shall continue to wage the war on corruption independently and will not succumb to the whims of any particular sections of the society.
Mr Haji said on December 28 that the Directorate of Criminal Investigations conducted investigations into fake court proceedings on Mumias Sugar, that were allegedly used by several legal service providers to obtain money, in the form of legal fees, from the company.
The statement stated that about Sh89 million was paid through fraudulent schemes.
Mr Haji said charges will be preferred against Mr Ojienda, former finance director Peter Kibati and former company secretary Emily Otieno.
The charges include obtaining money by false pretences, uttering false documents, abuse of office and conspiracy to defraud the company.
Meanwhile, Mr Ojienda through his lawyers Prof Ben Sihanya and Mr Nelson Havi have filed a case seeking to stop his prosecution.
High Court's Justice Chacha Mwita has certified the case urgent and allowed Senior Counsel Okong'o Omogeni to argue it.