The High Court has barred a Kiambu magistrate from hearing any proceedings in the manslaughter case against lawyer Assa Nyakundi.
Justice Jessie Lessit on Monday issued the order against senior principal magistrate Teresia Nyangena following an application by DPP Noordin Haji.
The DPP had applied for a prohibition order until the case filed at the High Court in Milimani is heard and determined.
The order was served to senior resident magistrate Grace Omodhod who received it on behalf of Nyangena who was away. However, Nyakundi, through his lawyer John Khamimwa was concerned that Justice Lessit issued the order declining to deal with any matter of Nyakundi.
The case will be mentioned on August 15 for further direction.
Nyangena had last week declined to recuse herself from the manslaughter case in a four-page ruling read on her behalf by senior principal magistrate Stella Atambo.
She said she had the requisite jurisdiction to hear and determinate the case.
"This is founded upon the premise that the Director of Public Prosecutions having elected under its power to prefer the present charges before this court 1 fail to be persuaded by the prosecution's contention that the court lacks jurisdiction. I am in agreement with the stand taken by counsel for the defence and the deceased's family," Nyangena said.
Deputy DPP Catherine Mwaniki had asked Nyangena to recuse herself from the case accusing her of bias and not recording the prosecution's application during the last proceedings.
Mwaniki had argued that the court had so far demonstrated bias in favour of the defence by allowing their application for time to respond to the prosecution's application for discontinuance of manslaughter case.
She said the court demonstrated open bias in declining the prosecution's reply to the application for more time by the defence.
Defence lawyers Danstan Omari, Khaminwa and Cliff Ombeta had opposed the application as having being brought in bad faith.
They accused Mwaniki of not respecting senior Judiciary officers by attacking the trial magistrate in public instead of going to her chambers to raise any issue concerning the case.
Omari, who is representing Mrs Lydia Nyakundi and her children, who are also witnesses in the case, told the court that his clients want Nyakundi back in their Muthaiga home.
He said Mrs Nyakundi and her children want to reunite with the head of the family who, three weeks ago, was ordered not to go to his house.
Nyakundi has denied killing his last-born son Joseph Bogonko on March 17 on their way from church. He is out on Sh300,000 bail.
Nyangena had while declining to recuse herself from the case said the prosecution had ample time to notify all the parties of the intention to enter a nolle prosequi.
"A further demonstration of bad faith on the part of the prosecution is when it unilaterally moved the court on May 2, 2019, indicating its intention to withdraw the charges, a fact which was deliberately withheld from the defence and the family of the deceased," said the magistrate.
She said that the court is guided by the wisdom that the choice of forum ought not to be dictated and therefore the jurisdiction fettered through unsubstantiated allegations of bias or compromise from any quarters.
"If courts were to readily succumb to such instances then the quest for justice would be elusive and the same would remain a mere mirage embodied only in our constitution, statutes and law books," Nyangena said.
She said that she was directed further by the fact that the principal parties – the defence and the family of the deceased – see no reason to ask the trial court to disqualify or recuse itself from proceeding with the case to its logical conclusion.
Nyangena directed the parties to canvas their respective applications and responses on priority basis to avert such issues as the suffering, anxiety and hardship visited upon the accused and his family.
Francis Mwaniki
