The case of lawyer Assa Nyakundi has taken a turn after a ruling on Wednesday, May 20, dismissing an application by DPP Noordin Haji seeking to withdraw manslaughter charges against the advocate who insists he accidentally shot his son Joseph Bogonko.
In her ruling, Senior Principal Magistrate Teresa Nyangena dismissed the application disclosing that no new evidence had been tabled by the prosecution to amend the charges in the case where the lawyer is facing manslaughter charges.
"A mere assertion that there is new evidence cannot be sufficient reason to secure the permission of the trial court.
"In this premise, I find that the powers of the DPP to discontinue criminal proceedings are not absolute and the application is founded on weak grounds and the same is disallowed," the ruling read in part.
In court documents seen by Kenyans.co.ke, the senior magistrate faulted the DPP for his handling of the case citing media interference as well.
"Failure to disclose the evidence and always acting as though he is prosecuting the case in the media, portrays malice, ill faith and abuse of the court process. He does not appear keen on upholding the rule of law, accused rights, public interest, and strengthening of the criminal justice system," Magistrate Nyangena stated.
She held that the spirit of the law and the Constitution should be upheld not only for the sanctity of the judicial system but also for the interest of the public and posterity.
The Senior Magistrate further maintained that the court has to be satisfied that the DPP 's application is merited and is in the interest of justice and that it does not embarrass the justice system.
"For the court to give its permission for withdrawal, it means that the DPP has to furnish it with reasons in support of the subject application," she added.
Earlier on January 24, DPP Haji announced that he was seeking to terminate manslaughter charges against lawyer Assa Nyakundi and instead, prefer murder charges after discovering new evidence - evidence which the magistrate's court noted hadn't been presented when dismissing the application.
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The tragic shooting took place in March 2019, when Nyakundi and his late son had just attended a service at ICC Church along Mombasa Road and were heading home to Muthaiga.
As they were approaching the house, Nyakundi is said to have shot his son in the chest while transferring his gun from a pouch in the car to a waist holster.
