Gatundu South Member of Parliament Moses Kuria who has lost a bid to have Safaricom compelled to produce phone records of Law Society of Kenya Chief Executive Officer Apollo Mboya.
BY SAM ALFAN.
Gatundu South Member of Parliament Moses Kuria has lost a bid to have Safaricom compelled to release phone call data he expected to use in his defence in a case in which he is charged with hate speech and ethnic contempt.
A magistrate overruled the politician’s request as “premature” and that it had only served to “waste the court’s time.”
Mr Kuria wanted Safaricom compelled to release the call details relating to allegation made in court by LSK Secretary Apollo Mboya who was a prosecution witness in the hate speech case.
The witness had told the court that he had received four calls from advocates who told him that Mr Kuria had posted the alleged hate speech messages on his Facebook wall.
Presiding magistrate Theresia Nyangena said the application was unripe as the prosecution was yet to clos its case and the suspect was yet to be put on his defence.
She said she was reluctant to dictate how the prosecution should conduct its case.
“ It is my finding that it is premature…the court at this juncture cannot make a finding whether the accused has a case to answer and in my opinion lacks merit, and only serve dto waste the courts time,” she said.
The magistrate directed that the case facing Mr Kuria be heard and determined before the end of the year.
Hearing resumes on December 1.
In the case Mr Kuria is charged with posting messages after the Gikomba bombing in which he accused members of the Luo community for being responsible.
The prosecution says the messages were designed to stir ethnic contempt against the luo and Somali communities.
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.
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.
