Bernice Mbugua and Zadock Angira @PeopelDailyKe
The wheels of justice in a case in which prominent Nairobi lawyer Assa Nyakundi is accused of shooting dead his son seem to turn unusually slowly.
Yesterday, 124 days after the fatal shooting, the judge who was to handle the case, Justice James Wakiaga, referred the matter back to Justice Jessie Lesiit, who had earlier on sent it to him.
In one of the most confounding court matters in the country’s justice system, the Nyakundi case has been characterised by confusion and multiplicity of applications before the High Court with almost every judge and magistrate appearing to wash their hands off it.
As it stands today, at least six different applications have been made in the case, which has so far been presented before seven different magistrates and judges.
Yesterday, Director of Public Prosecution (DPP) Noordin Haji added the latest application when he said that some of the pleas raise fundamental and serious issues of law and public importance that should be determined by a bench. He cited failure by a Kiambu magistrate’s court to discontinue a manslaughter charge against Nyakundi so that he could charge him with murder.
“Failure by the magistrate to make a pronouncement has occasioned delay, confusion and multiplicity of cases and applications before the High Court which have gravely and adversely affected the efficient exercise and execution of DCI and DPP constitutional mandates,”stated senior Principal Prosecution counsel Gikui Gichui in court documents.
The DPP argued that the application, filed by Lydia Nyakundi with regard to the decision to charge her husband with murder, and the selection of the offence and the participation of victims in the said decision, raises fundamental and serious issues of law and public importance which should be determined by a bench of judges.
“The allegations raised by the respondent, the defence counsel and his wife amount to personal attacks on the conduct and character of the prosecution counsel handling the matters and ought to be dealt with in an expeditious manner,” stated Gichui.
But how did the matter get here? Makadara Chief Magistrate Heston Nyaga was the first to handle the issue when it first reached court on April 25, 2019 and granted police more time to finalise investigations.
The suspect was then charged with manslaughter before Kiambu Senior Principal Magistrate Teresia Nyangena.
Justice Lessit then barred the magistrate from hearing any proceedings.
Drama was to further unfold when Assistant DPP Catherine Mwaniki made an application asking to have Kiambu Principal Magistrate Teresia Nyangena withdraw from the case, adding that the court lacked territorial jurisdiction to try the case.
But Ms Nyangena dismissed the application for recusal, saying there was no evidence to support the allegations that she had been influenced and unable to be objective in the entire process.
Kiambu Magistrate Christine Meoli took over the case but later recused herself, saying she was Nyakundi’s classmate in law school.
The matter then attracted the attention of the big men in the criminal justice system when the DPP and the Director of Criminal Investigations (DCI) George Kinoti filed an application before Justice Lessit, seeking to substitute the manslaughter charge with murder.
While making the application, Kinoti had expressed his determination to ensure that Nyakundi is charged with murder, claiming “some people appeared to have made up their minds to defeat the course of justice”.
“It is going to be murder and nothing else. We cannot sit and watch as justice is defeated,” Kinoti vowed then.
The controversy surrounding the case did not spare detectives investigating the shooting as two of them were accused of ignoring crucial elements of the case and interdicted.
Responding to the DCI boss’s determination, Nyakundi’s lawyers filed an application to bar the DPP from charging him with murder. Nyakundi’s wife also moved to court to oppose the new charges, saying as the victims, the family had not been consulted by the DPP. The prosecutor had listed her as a possible witness against her husband.
The wife and children made the application before Justice Ngenye Macharia.
Lawyer Nyakundi, his defence counsel and wife have made allegations that what the prosecution has said about the case amounts to personal attacks on the conduct and character of the lawyers handling the case.
Concerns have also been raised on the possibility of conflicting judicial decisions by the different judges following the circus.
On July 9, 2019, Justice Lesiit declined to deal with the matter and referred it to Judge Wakiaga to hear all applications relating to the issue.
The following day, the prosecution made another application before Justice Lesiit and obtained a prohibition order stopping the manslaughter case in Kiambu until the applications filed at the High Court in Milimani were heard and determined.
Yesterday, Justice Wakiaga ordered the parties in the case to appear before Justice Lesiit after it emerged the prosecution had appeared before Justice Lesiit on Monday and obtained an order stopping the manslaughter case in Kiambu.
Even with the multiple applications already made on the matter, the DPP is filing a new plea seeking an odd number of judges to hear the matter, saying the applications already made raise substantial questions of law.
In their separate applications opposing a murder charge, Nyakundi and his wife say the move to charge him with the offence is unconstitutional since there are manslaughter charges already pending before a Kiambu court.
The application by Mrs Nyakundi, also challenges the murder charge, saying she and her children were not consulted yet they were victims in the case.
Lydia and her children, who are listed as witnesses in the case, want the court to allow Nyakundi back to their Muthaiga home.
The DPP, on the other hand, wants the court to discontinue the manslaughter case in Kiambu so that his office can file a murder charge. According to the DPP, the decisions concerning the various applications will involve the interpretation of Article 21,22,157,165,244 and 245, which touch on the implementation of rights and fundamental freedoms.
The DPP argues that the application filed by Mrs Nyakundi with regard to the decision to charge and the selection of the offence and the participation of victims in the said decision raises fundamental and serious issues of law and public importance which should be determined by a bench.
The DPP expresses concern about the possibility of conflicting judicial decisions emanating from judges of equal and concurrent jurisdiction and the effect it would have on the administration of justice.
The matter will now be mentioned on July 26 before Justice Lesiit for further directions.