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DPP accuses court of bias in Nyakundi case

Monday May 20 2019

Lawyer Assa Nyakundi

Lawyer Assa Nyakundi at Makadara Law Courts in Nairobi on April 25, 2019. He is accused of killing his son. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP 

ERIC WAINAINA
By ERIC WAINAINA
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The Director of Public Prosecutions now says the court may have been compromised to influence the outcome of a case in which city lawyer Assa Nyakundi is charged with killing his son.

The claims came up on Friday when assistant DPP Catherine Mwaniki made an application asking to have Kiambu Principal Magistrate Teresia Nyangena to withdraw from the case.

INTERDICTED

Ms Mwaniki said there was information indicating that contact had been made with the court with a view to defeating justice, adding that Ms Nyangena’s conduct showed bias.

Mr Joseph Bogonko, 29, died in mysterious circumstances on March 17.

His father was arraigned for manslaughter but Directorate of Criminal Investigations head George Kinoti believes the charge is a result of a bungled investigation.

The file at Kiambu court does not include scene of crime photos, a scene of crime analysis report or a ballistics report.

Mr Kinoti says the pictures and the reports were intentionally left out of the investigations.

The DCI chief has disowned the manslaughter charge against Mr Nyakundi, interdicted investigating officers and ordered a public inquiry into “a major cover-up”.

The DPP wants the manslaughter charges withdrawn, adding that fresh evidence shows the offence was more serious.

Ms Mwaniki said the lawyer could be charged with murder.

She added that when the DPP entered a nolle prosequi on May 10 as her officer was not willing to pursue the manslaughter charge, the magistrate accorded the defence time to canvass the issues and file responses.

SUBMISSIONS

When the DPP was served with the responses on Friday, minutes before the hearing began, the request for time to reply to the issues raised was rejected, she said.

The prosecution was instead given her 30 minutes to prepare, “demonstrating bias on the part of the magistrate”.

“I have perused the court file and noted that the magistrate did not record our response to the objection. If the prosecution is aggrieved, it could go to the High Court,” Ms Mwaniki said.

“Noting the intelligence information indicating that there was contact to influence the court … we ask this court the rescue itself in the interest of justice. Justice must be seen to be done. The court must be impartial.”

Ms Mwaniki also accused the magistrate of failing to record the prosecution’s submissions.

She said before the court placed the file aside for the 30 minutes to give her time to prepare, it did not record her submissions on the request for more time.

“It was only recorded when court resumed from the break,” Ms Mwaniki said.

However, Mr Nyakundi through his lawyer John Khaminwa, dismissed the claims, saying the prosecution was intimidating the court.

Dr Khaminwa said if Ms Mwaniki had genuine concerns, she should have aired them in the chambers and not in an open court.

RECANTED

“Put your foot down and reject this application for recusal … These grave allegations … are meant to intimidate the court. Do not abandon the proceeding. If she wants to walk out of the case, let her do so,” Dr Khaminwa said.

Mr Danstan Omari, who is representing Mr Nyakundi’s wife Lydia Nyakundi and their four children, described the prosecution’s claims as hot air, adding that Ms Mwaniki “is shopping for a friendly court”.

Dr Khaminwa and Mr Omari reiterated their application for a review on orders barring the lawyer from accessing his Muthaiga home or contacting his family.

Ms Nyakundi and her son Noah Nyakuru were listed as prosecution witnesses. However, it emerged that she may have recanted the statement implicating him in the killing and now wants him back home.

Through her lawyers, Ms Nyakundi said she had accepted the situation and wants to reunite with her husband.