Director of Public Prosecutions Noordin Haji on Friday, July 15, 2022, urged the court to allow him to press murder charges against prominent lawyer Assa Nyakundi for the murder of his son.
Haji through Alexander Muteti, Gikui Gichuhi and Oliver asked the three-judge bench to reverse the decision of the Kiambu chief magistrate court to dismiss his intention to charge lawyer Nyakundi with the murder of his son Joseph Bogonko.
The lawyer Nyakundi is accused of murdering his 29-year-old son Joseph Bogonko on March 17, 2019, in Nairobi.
Days later, Nyakundi was charged with manslaughter for causing the death of his son but the DPP later asked the magistrate court in Kiambu to terminate the charge and substitute it with murder.
But the Kiambu senior principal magistrate Teresa Nyangena declined, arguing that the Prosecutor had not tendered the alleged new evidence he had obtained before the court to show why he wanted to withdraw the charge. She also stated that DPP’s powers to discontinue criminal proceedings are not absolute.
Feeling aggrieved by the ruling, the DPP moved to the High Court with a review application seeking to reverse the magistrate’s ruling.
Muteti submitted before the judges led by Lady Justice Grace Nzioka, Jesse Nyagah and Doreen Chepkwony that the decision to charge the lawyer with manslaughter was based on the evidence that was available at the time.
“The decision was subject to a review upon receipt of all the pending evidence including the ballistic expert report, government analyst report, post mortem examination report and a copy of the firearm certificate (forensic crime scene reconstruction report),” Muteti told the bench in his submissions.
Muteti also said on investigations by the Directorate of Criminal Investigations (DCI) and the provision of new materials in the matter, the DPP reviewed the file and directed that the charges against the lawyer be terminated.
The prosecutor also termed the protest of the accused opposing the application not to be charged with a murder that it has no basis within the law.
The DPP also directed that the lawyer be arraigned before the High Court to be indicted with the offence of murder. The charge of murder was registered at the High Court on June 20, 2019.
However, Muteti said, the magistrate court did not terminate the proceedings following an objection by the lawyer.
In addition, the deceased’s mother, Lydia Kang’a, also filed an application at the High Court seeking prohibition orders against the DPP preventing him from preferring any further charges related to the shooting incident.
Muteti submitted that the DPP acted well within his constitutional mandate to seek withdrawal of the matter and that Nyakundi has failed to demonstrate any real prejudice occasioned to him.
“The Magistrate acted in an irregular manner and beyond her powers by refusing a withdrawal by the DPP in exercise of his constitutional mandate,” Muteti stated.
He added that the magistrate failed to appreciate that the DPP had given reasons for withdrawal of the manslaughter case.
For instance, that at the time of arraigning Nyakundi before the trial court investigations were still underway hence the forensic and scene of crime reports were not in the hand of the DPP.
Muteti added that the DPP is not required under the law to consult the relatives of a deceased person on the appropriate charge to prefer to a suspect.
“The DPP has the sole mandate to make the decision under Article 157 of the constitution to charge grounding his decision on the appropriate evidence that the investigation file contains. This decision is subject to review as additional evidence is provided,” the DPP stated.
He argued that whilst victims play an integral part in the criminal justice system, they cannot be said to have an influence on the constitutional mandate of the DPP, especially that of preferring charge.
The prosecutor added that Nyakundi’s Constitutional rights were not breached or prejudiced by the actions of the DPP of withdrawing the matter.
“The withdrawal made by the DPP is necessitated so as to ensure that the protections in the Constitution and relevant statutes for both the accused person and the victim’s family are safeguarded. The aspect of fair trial applies to all parties to a criminal case,” said Muteti said.
In opposition, Nyakundi through law John Khaminwa and Harun Ndubi argued that the DPP’s decision was unconstitutional and unreasonable.
Khamiwa stated that the DPP failed to give reasons for review for him to be charged with murder, under nolle prosecue.
He also argued that the DPP application is null and void , invalid and resembles an appeal rather than a review.
He also observed that the termination of the proceedings at the Kiambu law courts was an abuse of the court process and powers of the DPP.
On their part, Nyakundi's wife, son, and daughters revealed to the judges that they are state witnesses in the matter.
This after the bench sought to know the stand of the family in the matter.
"The bench is of the view that you need to tell us in a clear manner the victims stand as you will agree with us under normal circumstances the victim is always on the same side with the state, we are in a situation where the victims are on the side of the accused. so we just want to know generally what is the stand of the victims in this matter?" posed Justice Nzioka
In reply, the victim's lawyer Cliff Onduk stated that they support the manslaughter charge against Nyakundi but not the murder charge.
" The family has no objection to the due process of the law taking effect which entails the prosecution of the suspect. If the accused is facing a charge of manslaughter the same should continue to its logical conclusion that's the stand of the family," said the lawyer.
"The family is of the view that if that prosecution has to take place they are supporting the charge of manslaughter and not murder."
The High Court will deliver its judgment on October 14, 2022 on the matter.
