Court reject plea to detain Senator Omtatah, 22 other anti-abduction protesters, grant them Sh1,000 cash bail

A Nairobi court has rejected an application by the Directorate of Criminal Investigations (DCI) and the Office of the Director of Public Prosecutions (ODPP) to have 23 anti-abduction protesters led by Busia Senator Okiya Omtatah detained for 14 days following their arrest during yesterday’s demonstrations in Nairobi.

Instead, Milimani Principal Magistrate Rose Ndombi granted them Sh1,000 cash bail or an alternative bond of Sh50,000 and declined to have them detained noting that and ruled that the nature of offences does not warrant detention.

Ndombi said the state’s application does not disclose compelling reasons to warrant the detention of the activists and granted them a cash bail of Sh1,000 each.

The prosecution wanted the protesters be detained in custody pending completion of investigations into alleged cases of incitement to disobedience, creating disturbance contrary to section 95 (1) of the Penal Code and taking part in unlawful protests continue.

The prosecution relied on the application filed by Corporal Antony Kirimi who is attached to the DCI seeking the suspects to be detained for 14 days awaiting conclusion of Investigations.

The application is supported by the affidavit sworn by Corporal Kirimi indicating that he needs more time to conclude Investigations against the suspects before preferring charges against them.

Firstly, the officer told the court that he is investigating offences of taking part in unlawful assembling in and creating disturbance in a manner likely to cause a bleach of peace.

He also told the court that the suspects have not recorded their statements and their phones need to be taken to the DCI for analysis,

“Further, your honour we want to retrieve the CCTV cameras in premises around where they were arrested.” Kirimi added.

The officer had claimed that if the respondents are released, they are prone to create instability in the country.

The defence lawyers led by Kalonzo Musyoka, Martha Karua, Ndegwa Njiru, Eugene Wamalwa and Felix Keaton vehemently opposed the application by the prosecution indicating that no criminal offence took place but mere allegations by the officer,

“Your honour the Naivas Supermarket and Java restaurant near the said supermarket have not complained against the suspects.” Ndegwa submitted.

Ndegwa urged the court to dismiss the application to incarcerate the suspects with speculations reasons provided by the officer.

He told the court that the allegations that the suspects will create disharmony in the country lacks merit considering the country already in disharmony,

“Your honour you can consider the suspects as the freedom fighters and release them on free bond.” Ndegwa added.

His counterpart Martha Karua told the court that the suspects were exercising their constitutional rights as guarded by Article 37 of the constitution,

“Your honour the respondents were unarmed and they were demonstrating peacefully.” Karua said.

Karua told the magistrate that they were restrained to access Senator Okiya Omtatah in Gigiri Police Station where he was detained before being transferred to Kamumukunji Police Station.

The senior counsel further told the court that the senator was also denied his right to medication despite his plea.

She urged the court to guard the right of peaceful demonstrations and reject the prayers by the prosecution since the application did not disclose any offence committed by the suspects.

The lawyer claims that the rights of medication to the suspects were bleached together with accessing their lawyers and prayed the court to sermon the Officer Commanding Central Police Station to respond on the same,

“Your honour the suspects were mishandled where they bear several injuries on their bodies and they were not allowed to access medication. They were also denied their rights to talk with their lawyer.”

Karua prayed the court to apply Article 49 of the constitution which gives the suspects their right to liberty and ignore the wish by the prosecution to incarcerate them.

She concluded by indicating that no compelling reasons given to hold the suspects for 14 days.

In her ruling the Milimani principal magistrate Rose Ndombi considered the application by the defence and the prosecution noting that the suspects were exercising their rights as per the constitution and no crime has been reported,

“I have considered the submission by the defence that bond is a constitutional right to the suspects and there is no compelling reasons to warrant the denial of the same.” The magistrate ruled.

LSK vice president Kabata Mwaura is paying the cash bail for the activists and senior counsel Martha Karua has offered to be their contact person.

They are directed to appear before investigators when required.

The matter will be mentioned on January 21, 2025.