In a historic ruling the Milimani Magistrate Gilbert Shikwe on Wednesday February 1,2023 blasted the police and prosecution for being insensitive to the changes in the law while seeking orders to detain the MCA.
Magistrate Shikwe noted that Inspector general of police and the Directorate of Criminal Investigations should have know that the law in which they relied in seeking detention orders have been expunged from the statutes and doesn’t not exist.
The magistrate also put the Attorney General Justin Muturi on the spot for sleeping on his work for failing to present amendments to the law to Parliament as directed by three Judge of the superior court.
The AG had been given one year to make the amendment in the law which he has failed to do todate. “The application by the DPP and DCI had no legs to stand on as it it so based on none-exsitent.
I hereby dismiss the application and order the unconditional released of the MCA unless lawfully held.The court further noted that hurried manner in which the state dashed the MCA to court leaves alot to be desired.
The Magistrate concurred with defence lawyers Sam Nyaberi and Danstan Omari that one can not be held on non-existent law. The lawyer had urged the court to discharge their client claiming police are using outlawed laws to secure his incarcetation and illegal.
Omari asked the court to invoke the ruling of the High Court rendered by currently court of appeal Judges Jesse Lessit, John Mativo and Luka Kimaru which declared section 96 of the penal code annulity and discharge the MCA forthwith.
Citing the decision where the famous Pangani six including former Machakos Senator Johnson Muthama and two CS’ Moses Kuria (Trade) and Aisha Jumwa (Public Service) Ferdinand Waititu and two others were discharged of allegations of incitement to violence, Omari asked the court to free the MCA without blinking.
In the decision the High Court found section 96 of the Penal Code was ultra vires the constitution.
“A declaration be and is hereby issued that section 96 (a) of the Penal Code is unconstitutional to the extent that it shifts thelegal and evidential burden of proof to an accused person before the prosecution has discharged its legal burden of proof ofestablishing its case in a criminal trial, thereby violating the provisions of Articles 25 (c), 49 (1) (a) (ii) & (iii), (b), (d), and,Article 50 (2)(a), (i) & (l) of the Constitution, ” the judges ruled The High Court declared the section unconditional and freed the Pangani six suspects.
“We urge this court to discharge the suspect unconditionally as the offences he is being investigated does not exist in law,” Lawyer Omari stated.
Immediately after his release the MCA, while addressing the Media outside the courts stated that he will persue the DCI, IG, AG and DPP for illegal arrest and detention which has caused his embarrassment and disrepute.The MCA had spent two nights in custody over allegations of incitement to violence and disobedience of the law over utterance he made during a meeting at Chungwa House in Capitol Hill on January 25.
At the same time, It has emerged that NCIC has summoned six other MCAs including Nairobi majority leader Peter Imwatok over undisclosed offences. The six are set to appear before the commission on Tuesday next.
