Lawyer Dr John Khaminwa and Senator James Orengo for Machakos Senator Johnstone Muthama argue an application seeking to stop senators on Thursday October 8,2015.
Embattled Machakos Senator Johnstone Muthama has failed in his bid to secure an order to prohibit his prosecution has recommended by the director of public prosecution KeriakoTobiko, on allegation issuing utterance against President Uhuru Kenyatta and Devolution secretary Ann Waiguru.
The said utterances were made during Cord rally held at Uhuru Park on 23 September 2015
Justice Joseph Onguto, said that the court cannot issue order until the director of public prosecution, the cabinet secretary for interior and co-ordination of national government and inspector general of police have responded to the application by the senator.
The judge directed the petition be served upon the respondents and the matter be heard tomorrow inter parties for the court to determined whether to issue the conservatory order sought.
The senator through a battery of lawyers led by Dr John Khaminwa, James Orengo and Antony Oluoch, separately in their submissions told the court that their client is being charged with offence of incitement to violence which is contrary to Article 50 (1) of the constitution.
The extent that the charge of alleged incitement to violence under Article 96 (a) purports to shift the burden of proof and takes away presumption of innocence
The court hear that the decision of the DPP is selective and discriminatory that is not based on proper investigation has required by law.
”The utterance made by the petitioner was well within his right as senator and citizen of the Kenya” the court heard.
Muthama he said to have told the crowd at the rally.
” That failure of the government of the day to listen the rising tide of security with the republic”
he further said that
Failure by the government to respect public institution to protect public monies lost through corruption by government officers and refusal by the government to obey judicial orders”
During the rally the senator was heard saying that Waiguru was President kenyatta ‘s lover that head of state was careless how per-occupied by the cabinet secretary and he should be smoked out state house
All that he senator said the lawyers told the court was within his constitutional rights and freedom of speech.

The matter to be heard on Friday.