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Moses Kuria off the hook in incitement case

By Nancy Gitonga
Thursday, March 12th, 2020
Gatundu South MP Moses Kuria.
In summary

Gatundu South MP Moses Kuria was Thursday acquitted of incitement to violence charges following a High Court’s declaration that a provision of Kenya's Penal Code that creates the offence is unconstitutional.

While terminating the charges against the MP, Milimani Senior Principal Magistrate Kennedy Cheruiyot said the High Court’s decision dated January 29, 2020 is still in force as no appeal has been filed by the prosecution to date.
 
" I hereby dismiss the charges against the accused person and thus the case is terminated,” ruled Cheruiyot.   

After quashing the proceedings of the case the magistrate also ordered release to Kuria a bond of Sh 3 million that he had deposited awaiting determination of the case.

Kuria was facing two criminal counts of incitement to violence contrary to section 96(a) of the penal code, which a three-judge bench had nullified.

The bench comprising Justices Jessie Lessit, Luka Kimaru and John Mativo found that the section 96(a) should not be allowed to stand as it shifts the legal and evidential burden of proof to an accused person from the prosecution.

In acquitting Kuria, the magistrate noted that the judges had recommended the Attorney General to prepare a Bill to be presented to Parliament with a view of remedying the deficiency in section 96 (a) of the Penal Code.

The Bill, the judges said, should be to amend the said section of the law to conform with the Constitution as stipulated in section 7 of the Sixth Schedule to the Constitution.

They added that the Attorney General should do so within a period of one year so that the purport and intent of the disputed provision is maintained.

On February 17, this year when Kuria’s case was coming up for hearing, his lawyer Francis Munyororo told the court that the legal clause that the prosecution was basing its case on had been declared unconstitutional.

Lawyer Munyororo served the trial court and the prosecution with a copy of the High Court’s judgment as he sought acquittal of his client.

Section 96(a) of the penal code says the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.

But the three judges found that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”

In the ruling, the judges said the inevitable effect of the disputed section of the penal code is that the accused person is under compulsion to adduce evidence of reasonable cause to avoid conviction even if the prosecution leads no evidence to establish a case.

The judges ruled that the said section of the law offends the long-established rule of common law on the burden of proof that “it is always for the prosecution to prove the guilt of the accused person, and that the proof must be beyond a reasonable doubt.”

On November 25, 2015, Kuria was charged with uttering words which indicated it was desirable to bring death and physical injury to persons in Kenya.

He is said to have said the words in Kikuyu language.

“If I get a person, you, and that is why I said you should come with your pangas. These pangas are not only for clearing, have you heard? A person like that you should slash and finish him,” the MP allegedly said.

Kuria is said to have committed the offence on June 26, 2015 at Gatundu stadium in Gatundu town, Kiambu County.

Kuria is the fourth politician to benefit with the High Court's ruling after his Makadara colleague George Aladwa, former Machakos Senator Johnstone Muthama and ODM party activist Japhet Muroko. The three were acquitted last month by Milimani chief magistrate Francis Andayi.

Lawyer John Khaminwa, who was representing the three, said having being charged under section 96(a) of the penal code which now lacks force of the law the case was not sustainable.
Last July, the MP was charged afresh with incitement. He denied the charge.

On August 2 last year, a different Milimani court dismissed incitement charges against Kuria, saying the MP had no case to answer.

The charges stated that on September 5, 2017, at Wangige market in Kiambu county, Kuria used abusive words that were intended to cause physical injury to a person.

In his ruling, chief magistrate Francis Andayi said the state evidential video clip was sourced from social media and no evidence was used in the mainstream media.

It was the third time Kuria was being acquitted for the same offences.

He was accused of uttering abusive words toward Nasa leader Raila Odinga and his wife Ida.

Kuria is said to have posted on his Facebook account words implying they were ready for another election but that they will hunt down people who did not elect President Uhuru Kenyatta.

"Kiambu has spoken. They have said wembe ni ule ule (it is the same razor blade). Wangige and Kiambu people are seething with anger. One million of their votes were canceled by four people," Kuria's post read.

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