The court noted that whereas it could have wished to grant the application by the DPP to discontinue the current proceedings, “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 public and posterity.”
The DPP had preferred manslaughter charges against the lawyer, but later wrote to the court seeking to withdraw the charges in the absence of the defence and filed murder charges before the High court, despite the proceedings at the Chief Magistrates court.
The DPP brought the application seeking to terminate the proceedings citing Article 157 (6) (c) and Article 157 (9) of the Constitution, which allows his office to discontinue proceedings with the permission of the court.
In his defence, Mr Nyakundi’s lawyers Dr John Khaminiwa and Harun Ndubi told the court that nolle prosequi was an instrument used under the old Constitution to terminate proceedings and that the tool got misused by the State as it led to impunity and abuse of the court process.
“In opposing the application to discontinue the proceedings, the defence has averred that the DPP's actions are actuated by malice, bad faith and geared towards hindering proper functioning of the court, which actually proves that they have no new evidence as alleged but are merely forum shopping,” the magistrate stated.
