The case in which city lawyer Assa Nyakundi is charged with killing his son took a new twist Friday when it emerged that his wife, who was one of the key prosecution witnesses, recanted her initial statement implicating him and now wants him back home.
Mrs Lydia Nyakundi — in submissions by her lawyers and those representing Mr Nyakundi — told the court that she has accepted the situation and moved on and wants to reunite with her husband, who was two weeks ago ordered not to go to his house.
Mr Nyakundi has been charged with killing his last-born son Joseph Bogonko on March 17 in mysterious circumstances. He was charged with manslaughter in what Director of Criminal Investigations (DCI) George Kinoti believes was a result of bungled investigations.
His wife and eldest son Noah Nyakuru were witnesses in the case, which the Director of Public Prosecutions (DPP) now wants terminated and the lawyer discharged after details emerged that there were deliberate cover-ups by investigators.
On Friday, the DPP made a nolle prosequi application before Kiambu Principal Magistrate Teresia Nyangena and hinted that prosecutors intended to lodge more serious charges against Mr Nyakundi.
Mr Kinoti interdicted investigating officers in the case and ordered a public inquiry into what he called a “major cover-up”.
But Mrs Nyakundi’s lawyers told the court that she considered the death of her son an “accident”.
They told the court that she had carried out her own investigations and established that it was not murder and that her husband is innocent.
“A ground has been given as to what led to the death of our dear son, it was an accident (and) that has been said clearly. The wife has actually admitted that that was an accident (and) she has believed her husband. She has done her own investigations and discovered that it was an accident,” Mr Khaminwa said.
The development is likely to complicate matters for prosecutors, who were hoping to use Mrs Nyakundi and Mr Nyakuru’s testimony to nail the lawyer.
The lawyers asked the court to review orders issued last week barring Mr Nyakundi from accessing his Muthaiga home or contacting his family on the grounds that they wanted him back and that barring him from his home was wicked and immoral.
Mrs Nyakundi’s lawyers argued that barring him from his family did not sit well with the victims, particularly the wife, “who has been in a holy union with the accused person for over four decades”.
Mr Nyakundi’s lawyers said the accused, who has been living in a rented apartment in Kilimani following the court order, should be allowed “to rejoin his lovely wife and children”, saying they are willing to take him back, an eventuality the court cannot stop.
“What you (prosecution) are doing to Nyakundi is wicked, immoral and completely unacceptable. We cannot destroy a family in this manner. We are destroying Nyakundi’s family, his wife is longing for her husband,” said lead defence lawyer John Khaminwa.
“No woman in her senses, knowing or having any evidence that her husband is responsible for the death of her son, would want to have him back and share the same roof and bed. No woman would do such a thing. The woman in this particular case wants her husband back, the children want their father back,” he told the court and accused the DPP of acting recklessly.
He claimed that the DPP wanted the lawyer discharged so that they could have him rearrested, given the huge presence of police officers in court precincts.
But prosecutors argued that the claims were not in good faith, saying it was shocking that Mrs Nyakundi appeared uninterested in pursuing justice for her son even after new evidence indicated that the offence was not manslaughter. Mrs Nyakundi, they said, was a witness who had already recorded a statement under Section 127 of the Evidence Act.
The hearing continues on Friday next week.