Court declines to stop inquest into death of lawyer Assa Nyakundi's son

City lawyer Assa Kibagendi Nyakundi has suffered a major setback after the High Court rejected his bid to stop an inquest into the 2019 death of his son, Joseph Nyakundi.

Justice Gregory Mutai declined to grant conservatory orders to suspend Inquest No. E003 of 2023, which is before the Milimani Chief Magistrate’s Court, ruling that the public interest favours the inquiry into the circumstances surrounding Joseph’s death.

“...I find that the public interest favours the inquest proceeding. The Notice of Motion application dated May 21 2025 is hereby dismissed,” Justice Mutai ruled.

The judge also dismissed Nyakundi’s application seeking to have his constitutional petition challenging the legality of the DPP’s power to direct a magistrate to conduct an inquest heard by a bench of at least three judges.

In a ruling, Justice Mutai said the Lawyer had failed to demonstrate that the case raised substantial questions of law warranting the empanelment of a multi-judge bench by Chief Justice Martha Koome.

The judge directed that the petition be heard and determined by a single judge, declining to halt Inquest No. E003 of 2023.

“Bearing in mind the proportionate magnitudes of the competing interests, as enjoined in Gatirau Peter Munya (supra), I find that the public interest favours the inquest proceeding,” Justice Mutai ruled.

The case stems from the death of Joseph Nyakundi on March 17, 2019.

According to court documents, lawyer Nyakundi says that his son died when his firearm discharged as they drove home from church.

Nyakundi subsequently faced several court proceedings, including a manslaughter charge before the Kiambu Chief Magistrate’s Court and murder charges before the High Court.

A three-judge bench, in a ruling delivered on January 19, 2023, declared the proceedings in the murder cases null and void and directed that any action against Nyakundi be taken within seven days.

Nyakundi argues that the Director of Public Prosecutions (DPP) disregarded those directions by initiating an inquest in April 2023, months after the deadline had elapsed.

He asked the High Court to terminate the inquest, declare it unlawful and find that the proceedings violated his right to a fair trial.

The petitioner also challenged the constitutionality of Section 388 of the Criminal Procedure Code, which empowers the DPP to direct a magistrate to conduct an inquiry into the cause of a death.

He argued that the provision violates judicial independence and the separation of powers by allowing an office outside the Judiciary to direct a magistrate.

However, Justice Mutai found that the issues raised did not meet the threshold for certification as substantial questions of law requiring a multi-judge bench.

The judge said the question of whether Section 388 was unconstitutional could be determined by a single judge applying established principles of constitutional interpretation.

Justice Mutai noted that although the issue had implications beyond the parties, public importance alone was insufficient to justify empanelling several judges.

The judge also declined to suspend the inquest, noting that an inquiry into a death was not a criminal trial and did not determine anyone’s guilt.

“An inquest is an inquiry into the cause and circumstances of a death. It is not a criminal trial, and it does not determine any person's guilt,” he said.

He added that the decision on whether to institute criminal proceedings remained vested in the DPP under Article 157(6) of the Constitution, while the inquest magistrate could not usurp that function.

The judge further held that Nyakundi could participate in the inquest and challenge any findings through the processes provided by law.

Justice Mutai said the petition would remain capable of determination even if the inquest proceeded, adding that the court could grant appropriate relief should Nyakundi ultimately succeed.

He also emphasised the need to avoid further delays, noting that the death occurred more than seven years ago.

“The Petitioner, the Interested Party and the public all have an interest in the expeditious determination of the Petition,” the judge said.

The deceased’s family, listed as an interested party, supported Nyakundi’s application.

The DPP opposed the application, arguing that the petitioner had not demonstrated the existence of novel or weighty legal questions requiring a multi-judge bench.

In his final orders, Justice Mutai dismissed the application, declined to certify the petition under Article 165(4) of the Constitution and rejected the request to stay the inquest.