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City lawyer Assa Nyakundi yesterday suffered a major blow after the High Court  declined to block a decision by the  Director of Public Prosecutions (DPP) Noordin Haji  to institute murder a charge against him over his son’s death in March 2019.

In his ruling, Justice Daniel Ogembo dismissed the application by Nyakundi seeking to declare that the DPP abused the legal process by preferring murder a charge while there was a manslaughter charge pending at the Kiambu Law Court.

“I am not convinced that the filling of the murder charged herein in the circumstance under which the same was done amounts to an abuse of the legal process on the part of Nyakundi,” ruled Ogembo.

However, Nyakundi will not be charged just yet until two other cases that are still pending in different courts are determined.

The lawyer has been charged with manslaughter at a Kiambu court for allegedly shooting dead his son Joseph Bogonko Nyakundi on March 17, 2019 in Nairobi.

Nyakundi maintains that the shooting was accidental. 

Accidentally fired 

He argues that he was trying to holster his firearm when he accidentally fired, killing his son.

The DPP through Senior State Prosecutor Alexander Muteti later filed an application at the Kiambu court seeking to withdraw the manslaughter offence against Nyakundi in order to charge him with murder following further investigations into the matter by Directorate of Criminal Investigations (DCI).

But Nyakundi has opposed the move by the Prosecution to have him charged with murder, insisting that he had already been charged with manslaughter.

He says the DPP cannot conduct two parallel prosecutions and that he should face the manslaughter charge still pending before a Kiambu court.

Justice Ogembo held that even though there are two other cases pending on the same issues, he was not convinced that the filing of the murder charge by the DPP amounts to an abuse of the legal process. 

The judge noted that a life was lost and the DPP is naturally expected to act in public interest in ensuring that the investigations are conducted over the incident.

“I have not been shown how or in which way the DPP has acted against these constitution tenets under Article 157(II). On my part I see none” Justice Ogembo said.

The Article requires the DPP, in exercising his powers, to have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process.

Ogembo said he was aware there were two other cases that have a direct bearing on the current application before him.

Manslaughter charge

In the first case, Nyakundi has challenged the constitutionality of the murder charge while the second is the manslaughter charge still pending at the Kiambu Law Courts.

Ogembo ruled that the two cases, in his view, automatically make the orders of dismissal sought herein untenable.

The Judge further said if he dismisses the murder charge and the other judge allows the application by DPP seeking a revision of the ruling by Kiambu magistrate who declined to withdraw the manslaughter charge, then there will be no file in court.

“Nyakundi would in effect be discharged following the success of the DPP’s revision while at the same time there would be no pending case before the high court” Ogembo said.

Ogembo went on to stay his proceedings pending the determination of the other two cases.

The Kiambu court rejected a bid by the DPP to withdraw the manslaughter charge and ordered the case proceeds to hearing which then prompted the prosecution to seek a revision of the ruling at the high court that is still pending.

Nyakundi had asked the court to make a declaration that the DPP’s decision to prefer murder charges against him amounted to an abuse of legal process and is contrary to article 157(II) of the constitution.

The lawyer had also said that the DPP’s decision to prefer the murder charge against him in the high court embarrasses and stands to prejudice him right to a fair trial.

However, an autopsy report indicated that: “The shot projection from the chest exiting at the back suggested that whoever shot him was standing outside the rear right back door of motor vehicle KCE 753B Toyota Axio which belongs to the father of deceased.”