Lawyer Danson Mungatana for Gatundu South Member of Parliament Moses Kuria who is seeking orders to compel Safaricom Kenya Limited to provide phone records of the law society of Kenya Chief Executive Officer Apollo Mboya at Milimani law courts on Friday November 6,2015.
BY SAM ALFAN.
Director of Public Prosecution Keriako Tobiko has opposed an application by Gatundu South Member of Parliament Moses Kuria seeking court orders to compel Safaricom Kenya Limited to provide phone
records of the law society of Kenya Chief Executive Officer Apollo Mboya.
In his grounds of opposition filed in court, the DPP says court cannot issues mandatory injunction to the giant telecommunication company Safaricom since it’s not a party to the present suit or application.
Through Senior Director of public prosecution Leonard Maingi, he claims court has no jurisdiction to
grant orders sought in Kuria’s application through his lawyer Danson Mungatana.
He further submitted orders sought infringes the right to privacy of information of PW1 (Apollo Mboya) guaranteed under Article 3(C) of the constitution. DPP claims the application was brought in bad faith and seeks to embarrass Apollo Mboya and material sought by the accused will not assist the court.
“The orders sought infringe the right of privacy of communication of PW 1Apollo Mboya guaranteed under Article 31(d) of the constitution” said Mr Maingi.
While responding to DPP ground of opposition, lawyer Danson Mungatana told the court that, it’s the right of the accused to challenge any evidence by the prosecution. “It’s the right of the accused person to challenge any evidence produced by the prosecution and we want the record of Mr Mboya to challenge his evidence on oath before this court” Said Mr Mungatana.
He also trashed DPP statement that court has no powers to compel Safaricom to produce phone records of Apollo Mboya of a specific date and hour which they intend to prove he misled the court
when he said he received calls complains about Kuria’s post.
“We are seeking records of Safaricom to prove that indeed it’s force, which brings to question the integrity of the witness. And evidence Act is very clear where we are seeking to show that in fact the statements that are given before this court may not reflect information that’s necessary for it to determine any matter before it” Said Mr Mungatana.
He told trial magistrate Teresa Nyangene that, nothing can stop the court from obtaining the statement stating that, as per Section 33 of the constitution court has that power to obtain the information sought by the
accused.
This application must not be barred or defeated merely by someone is going to be embarrassed because of his status” submitted Mungatana.
In his an application filed in court today, Kuria is seeking the trial court to compel the telecommunication company to produce Mboya’s phone records for the 1`6 day of May 201q4 between 7pm and midnight.
Mboya who was the first prosecution witness stated in his statement of the 9 September, 2015that he received phone calls from four lawyers complaining about Kuria’s comments he made on Facebook page on the 16 May, 2014.
He argues his defence team needs the phone records from Safaricom Limited in order to prove the Mboyo’s allegation are false.
Kuria who was charged on 26 June ,2014 with incitement to violence and disobedience of the law contrary to section 96 of the penal code as the charge of hate speech.
The defence has reasonable doubt as to the accuracy of the testimony given by the first prosecution witness” said Kuria in his affidavit
During the hearing Mr Mboya told the court that Gatundu South MP wrote an “inflammatory” post against the Luo on his Facebook page in January, the Law Society of Kenya has said.
Kuria is accused of linking the Gikomba terrorist attack, which killed 10, to members of the Luo community.
Testifying in an application to have Kuria’s bail revoked; LSK secretary general Apollo Mboya said the words on the MP’s page could cause havoc.
Statements posted by controversial Gatundu South MP Moses Kuria on social media relating to the Gikomba fire last year did not amount to hate speech or incitement, Court heard on Wednesday.
The Chief Executive Officer of the Law Society of Kenya (LSK) Apollo Mboya was put on the spot by Kuria’s tough Lawyer Danson Mungatana to explain whether the remarks linked Cord Leader Raila Odinga or any ethnic Community in anyway.
In his response, Mboya said the statements were not linked to Raila but were laced with hate speech and ethnic contempt on May 16th 2014.
Earlier on, Mboya had stated that the statements were linked to Cord Leader Raila Odinga since Kuria had written the attacks were planned from Boston where Raila was at the moment.
Mboya told the court that he was called by four people which included advocates to check the various updates the Gatundu South MP had allegedly made.
However Kuria’s lawyer Danson Mungatana questioned whether Mboya acted on a personal initiative or as mandated by LSK since there were no minutes to indicate the council recommended Kuria’s Prosecution.
Mboya defended himself saying the agreement was met by an evaluation team.
‘I made communication with the office of the Director of Public Prosecution which included screen shots of the said posts. The DPP then requested the Inspector General of police by a letter to cause speedy thorough investigations on allegations and submit a report and findings,” he said.
Mboya denied the issue of political enmity saying that he forwarded the issue to the DPP because the social media updates would have caused incitement
Kuria had written on social media, “I think it’s just a matter of time before Kenyans start violence against perceived terrorists, their sympathizers, their financiers and those issuing travel advisories without sharing intelligence. I am not sure I will not be one of those Kenyans. When you touch Gikomba the nerve center of our economic enterprise, you really cross the line. Brace yourself. Choices have consequences.”
He was charged after the Law Society of Kenya (LSK) wrote to DPP Keriako Tobiko demanding that action be taken against the legislator for posting messages which they said displayed and encouraged ethnic hatred.
On June 2014, he was charged with three counts of incitement to violence on Facebook and was released on a cash bail of Sh2 million. Kuria was later charged on the recommendation of the National Cohesion and Integration Commission (NCIC).
He however sought an out-of-court settlement where he was to offer an apology for his postings and refrain from committing similar offenses in future.
He had earlier been charged with hate speech after he linked Gikomba bomb blasts to members of the Luo community.
Trial Magistrate Teresa Nyangene will deliver the ruling on November 13.
