The Director of Public Prosecutions and the Directorate of Criminal Investigations say they were not informed that Lawyer Assa Nyakundi was being charged with manslaughter.
In a response to Nyakundi’s petition seeking to block a murder charge, the DPP and DCI say that they were not made aware that the officers in charge of the case were charging him with manslaughter.
In a court affidavit, they said the investigating officers in the manslaughter case are under interdiction and investigations are ongoing to establish their roles in the miscarriage of justice and the conspiracy to defeat justice.
While addressing the court yesterday, assistant DPP Alexander Muteti told Justice Jessie Lessit that they intend to file a new application seeking to have Nyakundi’s case forwarded to the CJ.
They want him to form a bench to hear all applications on matters being raised.
DPP and DCI have defended their decision to charge Nyakundi, who shot his son, with murder.
The DPP dismissed the lawyer's claim that the gun accidentally discharged while he was trying to retrieve the firearm. His son Joseph was shot on March 17 near their Muthaiga home.
He said he based his decision on Nyakundi’s statement under inquiry, forensic reports, the postmortem report and the forensic crime scene reconstruction report.
“With this information, there being evidence of a direct aim at the deceased chest, the probable offence was that of murder and not manslaughter,” the DPP and DCI's affidavit reads.
According to them, when the case was filed before the Kiambu court the prosecutor did not have ballistic experts report, government analysts report, the postmortem report and a copy of the Firearms Certificate.
There being evidence of a direct aim at the deceased's chest, the probable offence was that of murder and not manslaughter.
Investigating officer Maxwell Otieno also questioned why Nyakundi’s wife, who is a witness, never approached the DPP or DCI and instead filed an application seeking to bar them from charging her husband.
“The wife of the accused person simply does not want the accused person to be charged and thus her action cannot be lawfully deemed as a reconciliatory process but a means to defeat justice,” Otieno says.
Nyakundi’s wife has told the court that she is the victim and not a witness as alleged by the prosecution.
The state has also denied allegations by Nyakundi in his petition that prosecutor Catherine Mwaniki was biased.
“The prosecuting counsel was directed by the DPP to talk over the matter after the irregularities came to light that caused the matter to be filed in the Kiambu court on the offence of manslaughter,” reads the affidavit.
The DPP and the DCI say that they have total confidence in Mwaniki to handle the matter with integrity.
“Prior to and to date we have and are relying on her experience and guidance in breaking through complex homicide cases and we have been successful in most of the cases,” they said.
They denied claims that she solicited the matter against Nyakundi while harbouring a grudge against him.
“The accused person has failed to show an iota of evidence that the prosecuting counsel is acting outside her stipulated mandate,” they said.
A bench would be tasked to determine whether Nyakundi can be charged with murder while there is still an active manslaughter charge in another court.
Another issue is whether his wife who had allegedly recorded a statement against him can be deemed a victim.
The case will be mentioned on July 18 before Justice James Wakiaga for hearing of the applications.
(Edited by V. Graham)
