BY SAM ALFAN.
It is a big blow to the DPP after a magistrate declines to recuse herself from a criminal case against Lawyer Ass Nyakundi.
While dismissing the DPP application, Senior Principal Magistrate Teresia Nyangena said that prosecution did not have any evidence to support their application for her recusal the manslaughter case against the city Lawyer.
Further, the trial Magistrate said the court has a requisite jurisdiction to hear and determine the case.
“This is founded upon the premise that the Directorate of Public Prosecution having elected under its power to prefer the present charges before this court, I fail to be persuaded by the prosecution’s contention that the court lacks jurisdiction. Am in agreement with the stand taken by the counsel for the defense and the deceased family,” ruled Nyangena.
The magistrate further observed that the last ground of a possible contact with the trial court by unnamed persons with a view to influence the course of the trial is in her opinion the most serious of all grounds adduced and would make or cause any reasonable individual presiding over any tribunal duly constituted should recuse him or herself without any slightest hesitation.
“However, this good sense ought also to be exercised with some a bit of caution. In such instance armed with necessary intelligence or information, the prosecution ought to have been prudent enough to at least share with the court the information it has as to the source, manner and nature of the alleged contact,” ruled the magistrate.
The prosecution had made an application seeking the Magistrate to recuse herself from handling the matter saying the court demonstrated bias in favour of the defense by allowing time to respond to the prosecution’s application for the discontinuance of this proceedings.
They argued that on the same day, the court did not allow them to reply to the application by the defense.
“The court demonstrated open bias by declining the prosecution’s request for more time to reply to the written submissions filed by the defense,” the Prosecution argued.
While opposing the application, Lawyer Danstan Omari for 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”.
“An application from the DPP for a magistrate to recuse herself without any evidence is a sure sign of an office that appears confused and in a panic mode”, said Lawyer Omari.
Lawyer Omari further added that prosecution case is hopeless and ought to be dismissed. He termed prosecution as misuse of court process.
“They are forum shopping which is an exercise in futility. If a case is hopeless any court will dismiss it .The family is so sacrosanct as per the constitution”, reiterated Omari.
The prosecution further said the court lacked territorial jurisdiction to try the case and the court has been influenced and unable to be objective in the entire process.