The High court has allowed the DPP to withdraw manslaughter charges against lawyer Assa Nyakundi and substitute with a charge of his choice.
Nyakundi who was charged with manslaughter in connection with the death of his son could now face a different charge.
The bench gave the DPP seven days from the date of the judgement to prefer any new charge against Nyakundi.
Justices Grace Nzioka, Dorah Chepkowny and Jesse Njagi allowed the DPP to withdraw and charge him afresh but within seven days.
“Should the DPP consider preferring any charge against Nyakundi it shall do so within seven days of the date of this order,” the court ordered.
It is not clear why the DPP is yet to charge Nyakundi more than three weeks since the order was issued or if he was charged, why was it not publicised like the manslaughter charge.
As it stands now, Nyakundi is a free man as the manslaughter charge has been withdrawn and the existing murder charge quashed.
The advocate was arrested in 2019 for allegedly killing his son by shooting him in their car in mysterious circumstances.
Nyakundi at the time told police that he was with his son in the car when the gun went off accidentally and fatally shot the deceased.
His wife and son have filed affidavits in court as victims in the case.
The court also faulted the DPP’s conduct to prefer two charges against Nyakundi over the same subject matter saying it was not done in good faith and ‘must be discouraged and frowned upon’.
The court has quashed the murder charge that was filed at the high court by the DPP against Nyakundi.
In that regard, the criminal proceedings in the high court criminal case which were instituted while the manslaughter charge was still in existence is null and void.
On the issue of the victims, Nyakundi’s family had said they should have a say on what charge he should be preferred with but the court said their arguments saying their role is limited.
“We find that the issue of the rights of the victims that was canvassed herein was not an issue before the court, save to observe that the participation of a victim in a trial is limited as they are secondary prosecutors,” the court said.
The court ruled that the DPP is not duty bound to seek the victim’s opinion on what charges to prefer against a suspect.
The court also ruled that section 82 of the code does not state that permission of the court is required when they apply to enter a nolle prosequi does not render it null and void or inconsistent with the constitution, in light with the provisions of section 7 of the sixth schedule to the constitution.
However, the court said to avoid unnecessary litigation it recommended parliament to amend section 82 of the code to bring it into conformity with article 157(8).
The Kiambu court declined to allow DPP’s application to enter nolle prosequi to discontinue proceedings against Nyakundi.
It had ruled that the power of the DPP to discontinue criminal proceedings is not absolute thus the DPP appealed the ruling at the high court.
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