• Haji sought to be allowed to charge lawyer Nyakundi with the murder of his son, instead of manslaughter.
• Defence accuses the DPP of violating client's constitutional rights to a fair hearing.
Image: EZEKIEL AMING'A
The Director of Public Prosecutions, Noordin Haji, on Friday, sought to be allowed to charge lawyer Assa Nyakundi with the murder of his son instead of manslaughter.
The application for nolle prosequi (not willing to prosecute) was hotly contested by defence lawyers John Khaminwa and Cliff Ombeta. They said the DPP was violating their client's constitutional rights to a fair hearing.
Senior state counsel Catherine Mwaniki applied to Kiambu magistrate Teresia Nyang'ena to discharge Nyakundi of manslaughter.
Mwaniki said the DPP has powers to terminate any criminal case at any stage without consulting anybody. He can only inform the court through a letter for the magistrate to discharge the accused person.
"Your honour the prosecution is also looking for justice for Joseph Bongoko who lost his life," she said. But the defence said that amounted to intimidating Nyakundi.
Nyakundi was charged with manslaughter before the Kiambu magistrate's court on April 26 and released on a Sh300,000 bail.
Khaminwa and Ombeta said Nyakundi's wife Lydia Kung'a and her children want the lawyer back home.
They said the wife and children want to reunite with Nyakundi and move on with their lives.
The court was further told that Lydia had moved to the High Court seeking to stay a decision by DPP to withdraw manslaughter charges against her husband pending the hearing of the application.
She also wants the court to bar the DPP from preferring other charges against her husband.
Lydia, who is being represented by lawyer Danstan Omari, further wants pending hearing and determination of the application to prohibit the DPP, DCI, and the Kiambu court from preferring any further charges relating to the shooting of their son.
She is seeking a declaration that her role as a victim is active and includes the right to be informed of any action that the respondents (DPP, DCI and Kiambu magistrate's court) desire to take in any criminal proceedings preferred against Nyakundi in the murder of her son.
She is also seeking orders to quash the Kiambu court's decision to allow the DPP to withdraw manslaughter charges against the lawyer.
Lydia accuses the DPP of looking down on her right to be fully involved and informed of the trial before the court.
"Unless this court moved with speed and protects the applicant and the rest of the victims, the respondent will continue to politicise and lead to the publication of information without the victims' involvement or consideration of their feelings," Lydia says.
She states that the DPP, the DCI and Kiambu court has treated her as inconsequential and unworthy of attention by the publication of her name, her son's name and effecting the withdrawal of the manslaughter charges against her husband without her invitation or consideration of her view.
The magistrate allowed defence lawyers' application for more time to file their comprehensive submissions opposing the DPP's decision.
She directed the parties to return to court on May 17.