This archive report was first published on 20 May 2020.
Senior Principal Magistrate Teresia Nyangena has ruled that the Director of Public Prosecutions (DPP) cannot withdraw manslaughter charges against city lawyer Assa Nyakundi and substitute them with murder charges.
The ruling, made on May 20, 2020, will also clip the powers of the DPP to withdraw charges at will, as the court ruled that the powers of the DPP to discontinue criminal proceedings are not absolute.
Mr. Nyakundi is accused of fatally shooting his son Joseph Bogonko in March 2019. The lawyer claimed the shooting was an accident.
The court noted that the DPP's actions were motivated by malice and bad faith, and were aimed at hindering the proper functioning of the court.
Mr. Nyakundi's lawyers, Dr. John Khaminiwa and Harun Ndubi, argued that the DPP's use of nolle prosequi was an instrument used under the old Constitution to terminate proceedings, and that it had led to impunity and abuse of the court process.
The DPP had preferred manslaughter charges against the lawyer, but later wrote to the court seeking to withdraw the charges in the absence of the defence and filed murder charges before the High Court, despite the proceedings at the Chief Magistrates' court.
