A Kiambu court has dismissed an application by the DPP that was seeking to withdraw manslaughter charges against lawyer Assa Nyakundi and substitute it with murder.
Nyakundi was charged with manslaughter in the death of his son Joseph Bogonko but the prosecution later made an application to terminate the charge and substitute it for murder.
In her ruling, senior principal magistrate Teresa Nyangena dismissed the application by the DPP, arguing that they never tendered the alleged new evidence they had before the court to show why they wanted to withdraw the charge.
Nyangena says the only thing the DPP did was tell the court that he was under no obligation to give reasons why they wanted to withdraw the charge but because the matter was of high public interest, he said there was new evidence that pointed to murder but the evidence was not given to the court.
“The view of the court on this is that the DPP in the exercise of his powers has to be open, honest and act in good faith,” the court ruled.
The magistrate further ruled that failure to disclose the evidence and acting as though he was prosecuting the case in the media, portrayed malice, ill faith and abuse of the court process.
“He does not appear keen in upholding the rule of law, accused’s rights, public interest and strengthening of the criminal justice system,” Nyangena said.
She further held that the DPP’s powers to discontinue criminal proceedings are not absolute, adding that a mere assertion that there is new evidence cannot be sufficient reason to secure the permission of the trial.
“In as much as I would have wished to grant the application by the DPP to discontinue the current proceedings, in view of the all the circus that had dominated the entire process since inception, I’m of the view that the spirit of the law generally, and the Constitution, in particular, must be upheld not only for the sanctity of the judicial system, but also for the interest of the pubic and posterity,” she ruled.