Wednesday, February 1, 2023 – Court has rejected an application from the prosecution side to keep rowdy Nairobi Member of County Assembly MCA Absalom Odhiambo in custody for more days.
Odhiambo, sometimes called Mobimba, was dragged to court after he uttered incitement remarks during the recent Azimio la Umoja rally held at Kamukunji Grounds.
Principal Magistrate presiding over the case filed at Milimani Court, noted that the case was not based on any legal provision.
“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,” the magistrate ruled on Wednesday February 1.
He went ahead to detail why the applicants seeking for further detention of the accused lacked legal standing, either way.
“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.” Shikwe added.
The accused’s lawyer, Apollo Mboya, said the case was dropped based on Section 96A of the Penal Code 2015.
“Section 96A of the Penal Code was brought to the attention of the judge which was unconstitutional pursuant to a three-Judge bench ruling issued in 2015 against then-Senator Muthama,” he recounted.
In 2015, Mr. Muthama challenged the constitutionality of incitement charges as provided for in the section of the Penal Code where the High Court judges directed Parliament to repeal the section.
Todate, however, the section remains unattended thus hate speech offense is still not recognised in the Kenyan law.