The Director of Criminal Investigations (DCI) and the Director of Public Prosecutions (DPP) have faulted a move by lawyer Assa Nyakundi’s wife to challenge the state's decision to review the criminal charges he is facing.
Mr Nyakundi was charged with manslaughter after he shot and killed his son Joseph Bogonko Nyakundi on March 17, but the state has applied to review the charges it believes are lenient.
The lawyer was charged with on April 26 at a Kiambu court and released on a cash bail of Sh300,000, but investigators want to prefer the more serious charge of murder.
Mrs Lydia Kung'a Nyakundi opposed the review in an application at the High Court, saying she was not consulted.
In his response on Tuesday, DCI boss George Kinoti said it is his discretion to review charges and that this cannot be challenged.
The DCI also said several DCI officers who handled the case had been interdicted.
He also noted that Mrs Nyakundi, being the mother of the deceased, is a competent and compellable witness under the Evidence Act.
In an affidavit sworn by Mr Reuben Mwangi, a detective based at the DCI's head office, Mr Kinoti further said Mrs Nyakundi's rights were not violated as she claims.
“The respondents herein have not violated the rights of the petitioner under the Victim Protection Act and neither has the petitioner presented any information to the respondents for action."
In his affidavit, DPP Noordin Haji said, “I verily believe the decision to review the charges is constitutionally placed upon the first respondent (DPP) and that the petitioner herein, being a prosecution witness, is not objective to determine when and how the charges should be reviewed."
When Mr Nyakundi's case was mentioned before Kiambu Senior Principal Magistrate Teresia Nyengena on May 2, the prosecutor informed the court that she had been instructed to seek a mention date for as the DPP was reviewing the file.
In response, Mrs Nyakundi sought High Court orders quashing plans to withdraw the manslaughter charge, saying the decision was being made "unilaterally, whimsically and arbitrarily".
She further said her role as a victim was active and included the right to be informed of any action that the DPP, the DCI and the magistrate’s court desired to take.
She also sought an order prohibiting the DCI and DPP from preferring further charges related to the shooting.
“The said exercise of discretion by the DPP is inimical to the Constitution and Victim of Protection Act, 2014 and looks down the rights of the applicants,” her lawyers argued.
But the DPP termed Mrs Nyakundi's action premature and noted that investigations had not been completed.
“Anyone found culpable will face the law,” a prosecutor said.
The DPP further argued for the dismissal of Mrs Nyakundi's application, saying it had no legal or factual basis.
Mrs Nyakundi's lawyer Danstun Omari told Justice James Makau that he needed time to consult his client.
The judge directed that the Kiambu chief magistrate be served with the application and respond within seven days.
Justice Makau further asked parties to file their responses before May 28, when the case will be mentioned to confirm compliance.