Gatundu South MP Moses Kuria and his Kabete counterpart Ferdinand Waititu with lawyer Harisson Kinyanjui leaving trial court after they were set free over incitement to violence charges on Monday February 20, 2017.


The Director of Public Prosecutions Keriako Tobiko intends to appeal against a decision by a Magistrates court that acquitted two Jubilee Members of Parliament over incitement to violence  charges.

Immediately after the verdict was out,  Tobiko wrote a letter to the Chief Executive  at Milimani Court urging him to provide his office with certified copies of the proceedings and ruling to enable them appeal over the case.

An aggrieved Tobiko said that he is dissatisfied  with the ruling issued by the trial court and he needs the proceedings  to pursue other remedies provided under the law.

In the ruling,  Magistrate  Charity Aluoch acquicted the two on grounds that the prosecution  failed to make out a Prima facie case.

She said one of the witnesses who translated the video clips should have armed himself with a transcript  and certificate of translation.

She added that in the certificate  he should have made a declaration  that he is well versed with the specific dialect of the Kikuyu  used to make the utterances.

“I say specific dialect because one witness in his evidence in chief stated that different dialects are spoken in Muranga, Kiambu  and other parts of the region, ” she said.

Aluoch was of the view that the transcript would have identified  the words attributed to each speaker and the context upon which they were made.

She added that the failure to produce a transcript  was fatal to the prosecutions case.

Trial Court in it 15 page ruling on Monday acquitted Gatundu South MP Moses Kuria and his Kabete counterpart Ferdinand Waititu saying prosecution failed to prove it case.

“Prosecution is aggrieved and dissatisfied with the ruling the ruling  the trial court and intends to appeal the said orders at the high court ” said Ondimu Senior prosecutor.

Senior principal magistrate Charity Alouch said prosecution failed to make out a Prima facie case in the two counts “I therefore acquit the two accused person under section 210 of criminal procedure code” ruled magistrate.

The learned magistrate further said witnesses did not prepare a transcript and certificate of translation “this court cannot confirm as a fact that the words uttered in the video clip amount to incitement to violence “.

During the hearing, the investigating officer testified that she relied on a translation done by PW3 to draft a charge sheet.

The two MPs were charged together with six other legislators from the opposition.

The magistrate also ruled that public resources should not be misused and that the court is not satisfied that the utterances said to have been made by the lawmakers could result in incitement to violence.

She also pointed out that the original video or material used to record it and transcripts were not presented in court.

Five witnesses had already testified in the case against the two.

Waititu lawyer Harrison Kinyanjui welcomed the court ruling saying it was a reason to the police so they they can learn to gather enough evidence before rushing someone to court over incitement to violence charges.

“Prosecution rushed to prosecute them and rushed to have them locked up denying them the opportunity at that stage to demonstrate they were only expressing themselves within the context” said lawyer Kinyanjui.

Stay with Nairobi TIMES for more about DPP appeal.