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.