A Nairobi court has dismissed an application by the police that sought to detain Korogocho MCA Absalom Odhiambo for seven days pending investigations in the alleged hate speech case.
Mr Onyango has been freed unconditionally by the Milimani Law Courts after trial magistrate Gilbert Shikwe said the MCA was arrested and detained based on a non-existent law.
In his ruling, the magistrate faulted the police and the prosecution for being insensitive to the changes in the law while seeking orders to detain the MCA.
Shikwe also noted that the Inspector General of Police and the Directorate of Criminal Investigations (DCI) should have known that the law in which they relied in seeking detention orders have been expunged from the statutes and therefore it doesn’t exist in the legal books having declared unconstitutional by appeal Judges Jessit Lesiit John Mativo and Luka Kimaru.
“I have looked at the case presented in court. Looked at the High Court decision making section 96A of the penal code unconstitutional and I have noted that the decision has not been challenged by the prosecution,” Shikwe said.
“It is a nonchallenged fact that the applicant seeking orders to detain the suspect for seven days has no legal leg to stand and the only option is to dismiss.”
“He is hereby released unconditionally unless unlawfully held.”
In the morning, the defence lawyers led by Danstan Omari put the ruling on a halt after they presented another application.
The incitement to violence case against the MCA took a new twist after lawyer Danstan Omari brought to the attention of the court that Section 96A of the Penal Code under which the MCA was arrested, is constitutional pursuant to a three-Judge bench ruling issued in 2015.
