The Director of Public Prosecutions Noordin Haji wants High Court to reverse the decision of a magistrate court to dismiss his intention to charge lawyer Assa Nyakundi with murder.
The DPP on Friday urged the High Court to allow him to press murder charges against the lawyer for the death of his son Joseph Bogonko. The lawyer allegedly shot his son on March 17, 2019, in Nairobi.
Mr Nyakundi had been 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.
The matter was allocated a three-judge bench comprising justices Grace Nzioka, Dora Chepkwony and Jesse Nyaga to determine the DPP’s application.
Through his assistant Ms Wangui Gikui Gichuhi, the DPP on Friday argued that the decision to charge the lawyer with manslaughter was based on the evidence that was available at the time.
Review upon receipt
“It was subject to a review upon receipt of all the pending evidence including the ballistic expert report, government analyst report, postmortem examination report and a copy of the firearm certificate (forensic crime scene reconstruction report),” Ms Gichuhi told the bench in her submissions.
She said on further 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 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, she 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.
Ms Gichuhi submitted that the DPP acted well within his constitutional mandate to seek withdrawal of the matter and that Mr 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,” said Ms Gichuhi.
She said the magistrate failed to appreciate that the DPP had given reasons for withdrawal of the manslaughter case.
For instance, at the time of arraigning Mr 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.
She added that the DPP is not required under the law to consult the relatives of a deceased person on the appropriate charge to prefer against a suspect.
Additional evidence
“The DPP has the sole mandate to make the decision 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,” said Ms Gichuhi.
She argued that whilst victims play an integral part in the criminal justice system, they cannot be said to influence the constitutional mandate of the DPP, especially that of preferring charges.
The prosecutor added that Mr Nyakundi’s constitutional rights were not breached 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 Ms Gichuhi.
In opposition, Mr Nyakundi argued that the DPP’s decision was unconstitutional and unreasonable.
He also observed that the termination of the proceedings was an abuse of the court process and powers of the DPP.
The High Court will deliver its judgment on October 14, 2022.
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