Communication and Digital Strategist Dennis Itumbi has announced plans to appeal a decision by a Milimani Court to put him on his defence for spreading information alleging a plot to assassinate Deputy President William Ruto.
In a ruling delivered on Wednesday, Milimani Chief Magistrate Martha Mutuku said after going through evidence by the prosecution she was convinced that Itumbi and his co-accused Samuel Gateri have a case to answer.
“Having analyzed the evidence before court I find that the prosecution has proved the case beyond reasonable doubt to warrant the accused to be placed on their defence,” the Magistrate ruled.
But Itumbi now says they can’t go on trial on laws already declared unconstitutional by the High Court.
The vocal blogger had in August, through lawyer Katwa Kigen, asked Mutuku to acquit him of three charges of making false documents, publishing false documents and reprogramming a phone for lack of evidence.
He argued that the charge of making a false document under Section 66 of the Penal Code is unconstitutional following the High Court decision in the case of blogger Cyprian Nyakundi this year.
Itumbi further said that deletion of messages does not amount to reprogramming a phone as alleged in court by the state.
“That the prosecution has not made out a case which the court can be interested in his defence,” lawyer Kigen told the court.
“No credible, consistent and viable evidence and exhibits have been presented to assist, make a sufficient case for Itumbi to answer.”
Kahawa Tungu has learnt that Itumbi intends to appeal the matter based on the Nyakundi case.
In a landmark ruling delivered in May, Justice Weldon Korir declared Section 66 of the Penal Code unconstitutional.
Justice Korir ruled that the section, which criminalizes the sending of alarming messages that are likely to cause panic and fear, violates the Constitution.
Blogger Nyakundi had been accused of publishing false and alarming information regarding alleged graft at Kenya Power and Lighting Company (KPLC).
The tweet in question read: “Kenya power has been looted by Jubilee through Ken Tarus who got the Managing Director job using fake papers. This country is being led by criminals.”
Justice Korir ruled that the provision is too retrogressive to fit in a democratic country.
“It is difficult for one to express himself or herself without violating the said provision,” he ruled.
The Penal Code states that “any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanour.”
The offence attracts a custodial sentence not exceeding two years and/or a fine.