Criminal lawyer yet to take plea over son's killing 7 months later

The case involving city lawyer Assa Nyakundi (pictured), who is alleged to have shot his son Joseph Nyakundi, failed to take off last Thursday.

Nyakundi, his lawyer John Khaminwa and the prosecution were already in court when they were informed by a clerk that the magistrate had rushed to Kenyatta National Hospital to check on a sick relative.

The hearing was then rescheduled for the next day. 

Then on Friday, the drama surrounding the case continued after the prosecution demanded that it be transferred to another court.

Director of Public Prosecutions (DPP) Noordin Haji, in a letter dated October 17 and signed by senior assistant DPP Alexander Muteti, requested that the case be placed in the chief magistrate's court for direction.

Kiambu Principal Magistrate Teresia Nyangena has been hearing the case.

Mr Muteti, in the letter presented to the court on Friday, indicated that the matter needed to be disposed expeditiously since it was of great public interest.

Consistently unavailable

“The court that had been allocated has been consistently unavailable to hear the same, thus causing unnecessary delay and public anxiety, considering the status of the accused person in the society,” the letter read.

The prosecution, in the letter, sought a reallocation of the matter to a different court.

Prosecution Counsel Catherine Mwaniki told court they had previously applied for proceedings, but were yet to be supplied with the same, and upon inquiry from the registry were not offered a satisfactory explanation.

She claimed they had intelligence information indicating prior contact to influence the court on the matter.

Ms Mwaniki cited various instances to demonstrate that the court was taking sides in the matter.

On Thursday, the magistrate defended her absence, saying she had taken a relative suffering from cancer to Kenyatta National Hospital for chemotherapy.

“It was my thinking that I would have finished quickly and come back for the case. The session, however, took longer than I expected,” said Ms Nyangena.

The prosecution later withdrew the letter, with Mr Muteti saying they were only interested in getting the audience that they had been lacking.

Dr Khaminwa accused the prosecution of making unfounded, incorrect and misleading allegations against the court.

He accused the prosecution of seeking to have a judicial officer of their choice presiding over the case.

This is the second time the prosecution was seeking to have the matter heard in a different court.

On July 5, Nyangena dismissed an application by the DPP seeking to have her recuse herself from hearing the case.

Nyakundi was due to take plea on Wednesday, October 16 before Jessie Lesiit, who directed that the case be taken back to Justice Daniel Ogembo.

Justice Lesiit, who was promoted to a Court of Appeal judge, said she was not able to handle new matters.

Nyakundi, who specialises in criminal law, was in April charged with manslaughter following the shooting of his son on March 17.

He appeared before a Kiambu court and was charged that on March 17, 2019, at unknown place within Nairobi County, he unlawfully killed his son.

Nyakundi denied the charges and was released on Sh1 million bond or Sh300,000 cash bail.

Prior to being charged, the lawyer had been admitted to a Nairobi hospital after suffering high blood pressure.

On May 2, a Kiambu court allowed the DPP to review manslaughter charges against Nyakundi, a move that was opposed by his wife Lydia Nyakundi.

Mwaniki told the magistrate investigations revealed that the offence was not manslaughter.

Nyakundi’s wife went to High Court seeking conservatory orders barring the DPP from withdrawing manslaughter charges against the lawyer.

"The decision by the prosecution to withdraw the charges was made unilaterally, whimsically and arbitrarily," she said.

In July, Kiambu High Court judge Christine Meoli disqualified herself from hearing the case and referred it to Nairobi.

While referring the case to Milimani law court, Justice Meoli cited conflict of interest since the accused was a classmate.

On June 20, prosecution asked the court to allow the accused to undergo a mental test at Mathari Hospital before taking plea, but the defence lawyer opposed the application and argued that Nyakundi was in control of his senses.

The case was moved to June 21, but did not continue, as Khaminwa had to travel to Mombasa to give a lecture. The case was postponed to July 9.

On July 5, Nyangena dismissed an application by the DPP seeking to have her recuse herself from hearing the case.

“In declining the application to recuse myself from the conduct of this case, my mind is directed further by the fact the principal parties herein. The defence and the family of the deceased see no reason to ask the trial court to disqualify or recuse itself from proceeding,” Ms Nyangena said in her ruling.

The magistrate said on the alleged intelligence information indicating prior contact to influence the court on the matter that the prosecution ought to have been prudent enough and shared with the court the information on the alleged contact.

Excuse herself

Ms Mwaniki had, on May 17, sought to have the magistrate excuse herself from hearing the case.

The case was later referred to Justice Luka Kimaru, who gave it to Lesiit, who on July 9 referred it to Justice James Wakiaga. Justice Wakiaga set July 18 as hearing date.

At the time, the applications in the cases included a decision to enter a nolle prosequi against the manslaughter charge.

The prosecution sought to have a three-judge bench hear the case.

On July 18, Lesiit heard the matter and issued an order restraining Nyangena from hearing any proceedings in the manslaughter case.

The matter also came up before Justice Lesiit on July 26 but the lawyer did not take plea.

Journalists were barred from covering the matter as the counsels indicated they wanted to speak to the judge in camera.

Five days later, Nyakundi filed a case at the High Court seeking to stop Justice Lesiit’s order that directed that he takes plea. The case was later dismissed.