BY SAM ALFAN.
Former Machakos Senator Johnston Muthama is not free yet after High Court overturned a decision by a lower court freeing him.
He will be in court tomorrow, October 6 to have hearing dates for the case where he is accused of making inflammatory statements.
Senator Muthama was accused of hate speech and incitement to violence charges.
Lady Justice Grace Ngenye made the orders following an appeal by the DPP over a decision that terminated the criminal charges against him.
In her ruling the Judge said that she is not persuaded in any way that the DPP in any way abused his powers in charging Muthama.
“I find the application by DPP merited and the same succeeds. I set aside the orders of the lower court issued on July 28, 2016 dismissing the charge against Muthama.”
“I substitute it with an order that the charge sheet filed by the prosecution before Milimani Chief magistrate Court be reinstated,” said the judge.
She further ordered that the trial should proceed as scheduled and the trial file to be remitted back to the court to facilitate the execution of the orders.
Ex-Senator Muthama, was accused of making hate speech remarks at a press conference on June 13, 2016 at Capitol Hill in Nairobi County.
The prosecution alleged that he uttered words to the effect that would create chaos and forcibly storm the IG’s office if “certain people” were not arrested.
On July 28, 2016, then Milimani Chief Magistrate Daniel Ogembo, terminated the charges against the former Senator saying that the case is an abuse of the court process since he had been arrested and detained for four days alongside five other lawmakers at Pangani police station for an offence committed in 2015 while those of his co-accused utterances were made 2016.
CM Ogembo had also said that it was wrong to have the Senator face trial for charges which are similar to another matter which was also pending before court.
The court had also noted that the charges were not justifiable since the date of arrest and that of the offence being committed were also wrong and the prosecution can not account for the chronology of events before he was charged.
But Justice Ngenye noted that even though Muthama was in custody for four days so as to complete investigations for an offence that occurred June 11, 2016 only to charge him with an offence that occurred in 2015 may raise an eyebrow it was not a conclusive pointer to an intention to abuse of the process of the court.
She said that the prosecution had ample time to amend the charge sheet if there was an error with the dates.
The DPP had asked the court to set aside the lower court decision on grounds that it lacked jurisdiction to deal with matters relating to the interpretation of the Constitution on protection of Fundamental rights and freedoms of persons.
Last year Muthama was charged alongside Junet Mohammed (Suna East), Timothy Bosire (Kitutu Masaba), Moses Kuria (Gatundu South), Ferdinand Waititu, Kimani Ngunjiri (Bahati),Woman representatives Florence Mutua (Busia) and Aisha Jumwa (Kilifi).
They were separately detained Pangani and Muthaiga police stations on June 15 before they were charged.
Muthama through his lawyer James Orengo, had asked the court to dismiss the charges on grounds that they were defective and does not reach the threshold of a criminal offence.
He had also informed the court that he was not at Capital Hill where the prosecution claims he was with other politicians.
SC Orengo said that he was charged with similar charges in October, 2015 and a repeat of same would amount to abuse of court process by the prosecution.
