Kenya: DPP's Request to Change Lawyer's Charge to Murder Denied, Termed Malicious

City lawyer Assa Nyakundi will be tried for manslaughter after the Director of Public Prosecutions (DPP) lost an application to withdraw the charges and substitute them with murder.

The ruling made yesterday by Senior Principal Magistrate Teresia Nyangena will also clip the powers of Kenya's chief public prosecutor to withdrawal charges at will. This is after the magistrate 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 whereas it could have wished to grant the application by the DPP to discontinue the current proceedings, "the spirit of the law generally, and the Constitution in particular, must be upheld not only for the sanctity of the judicial system but also for the interest of the public and posterity."

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.

The DPP is allowed to enter nolle prosequi for various reasons, including where the defendants innocence has been proved, where there is insufficiency or inadmissibility of evidence, instances of plea negotiations and for the purpose of filtering out trivial cases.

The DPP brought the application seeking to terminate the proceedings citing Article 157 (6) (c) and Article 157 (9) of the Constitution, which allows his office to discontinue proceedings with the permission of the court.

The DPP also cited Section 82 of the Criminal Procedure Act, which gives him the power to discontinue proceedings.

The DPP argued that by the time Mr Nyakundi was being arraigned in court, investigations were still underway, hence the forensic report and scene of crime report were not in the hands of the DPP.

He added that upon receiving the reports, his office was of the opinion that they supported prosecution for the offence of murder, which can only be tried by the High Court.

In his defence, Mr Nyakundi's lawyers Dr John Khaminiwa and Harun Ndubi told the court that nolle prosequi was an instrument used under the old Constitution to terminate proceedings and that the tool got misused by the State as it led to impunity and abuse of the court process.

In her ruling, the magistrate stated that before the application being made by the DPP through one Mr Muteti, there were several other applications that the DPP made through MS Catherine Mwaniki.

Further, the court noted that the move by the DPP to go to the High Court where he obtained orders to stay court proceedings had delayed the matter almost indefinitely.

"In opposing the application to discontinue the proceedings, the defence has averred that the DPP's actions are actuated by malice, bad faith and geared towards hindering proper functioning of the court, which actually proves that they have no new evidence as alleged but are merely forum shopping," the magistrate stated. "... if they had the evidence as alleged, nothing would be easier than presenting it to the court and the defence counsel."

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