A court has acquitted ICT Chief Administrative Secretary Dennis Itumbi from a criminal case involving the publishing of false information over an alleged plan to assassinate President William Ruto four years ago.
Milimani Chief Magistrate Susan Shitubi freed Mr Itumbi and his co-accused blogger Samuel Gateri after finding that the three charges levelled against them were unconstitutional.
The magistrate acquitted them after finding that the provision of the penal code -Section 66(1) -that they were accused of violating had already been declared unconstitutional by the High Court.
The section, which provided that any person who published any false statement, rumour or report which was likely to cause fear and alarm to the public or to disturb the public peace was guilty of a misdemeanour, was declared unconstitutional in May 2021 by High Court Judge Weldon Korir. The judge found the legal section was violating the freedom of expression and the right of an accused to be presumed innocent until the contrary is proved.
Yesterday's ruling stemmed from an application by the defence advocates, who questioned the legality of the charges instituted against Mr Itumbi and Mr Gateri.
The CAS joins the list of President Ruto's allies whose cases, which were instituted by the former regime, have collapsed or been terminated by the DPP. Mr Itumbi's case was at the defence hearing stage.
Mr Itumbi and Mr Gateri were charged in 2019 with publishing a false statement, contrary to section 66(1) of the Penal Code. Dr Ruto was Deputy President at the time.
In acquitting them yesterday, the court found that the charges were unconstitutional and that the trial process was unlawful. The court said that the continued prosecution of the defendants was a violation of their constitutional rights.
Mr Itumbi and Mr Gateri had denied that on or before 20 June 2019, at an unknown location, they published a letter dated 30 May 2018 with intent to cause alarm to the public.
Mr Itumbi was accused of posting the letter on a WhatsApp group belonging to the Tangatanga team allied to then Deputy President Ruto.
He was separately charged with making a false document. He was accused of producing a letter purporting to be genuine and written by a Cabinet Secretary.
The third charge against Mr Itumbi was reprogramming a mobile phone contrary to Section 84 (G) of the Kenya Information and Communication Act. The case began at a time when Dr Ruto and former President Uhuru Kenyatta had fallen out over political issues.
In the early stages of the case, the court blocked Mr Itumbi from introducing a video clip of the alleged meeting and it's participants.
He had claimed to have recorded a video at Nairobi's La Mada Hotel, where the alleged plot to assassinate Dr Ruto was allegedly hatched. He wanted the video to be played in camera in court.
The letter claimed that there was an alleged meeting at Hotel La Mada on Thika Road attended by politicians and former senior government officials where Dr Ruto was on the agenda.
Three cabinet secretaries from Mt Kenya region were linked to the alleged assassination plot, and were later summoned to the Directorate of Criminal Investigations for questioning in June 2019.
The CSs denied the allegations, describing them as "wild" and "baseless".
Mr Itumbi had already submitted his written arguments to the court, urging the magistrate to acquit him on the grounds that the charges were unproven.
Through his lawyer, Katwa Kigen, Mr Itumbi said the charge of making a false document under Section 66 of the Penal Code was unconstitutional after the High Court declared that such charges were illegal.
The lead police officer investigating the case had also cleared Mr Itumbi of the alleged letter. The officer testified that a forensic report showed that Mr Itumbi was not the author of the letter.
Reacting to the withdrawal of the case outside court yesterday, Mr Itumbi said he would sue former senior officials of the previous regime who dragged him to court. He said he would seek damages from them as individuals.
"I am now free, acquitted by the court. The real charge was not that I was the one who published a fake letter, the real charge was that the criminal justice system then brought a fake charge to court," Mr Itumbi said.
He complained that the criminal justice system was being abused to punish him for political reasons.
"This should not happen to anyone else. Let us use the criminal justice system to solve the problems in our society, to prevent crime and to deal with real criminals. It should not happen to your worst enemy. This case should have collapsed and it has collapsed," said Mr Itumbi.
Lawyer Dr Adrian Kamotho, for Mr Itumbi, said the CAS had earned the right to take further action, such as seeking damages, because of the illegal prosecution.
"There was absolutely nothing against our client and we are happy that it has ended in an acquittal. We believe that our client deserves the right to take further action because it has been a long process and those who perpetrated the malicious prosecution must be held accountable. I applaud the judiciary and independent institutions for always ensuring that the rights of citizens are protected," said Dr Kamotho.