A university student has urged the court to acquit him if President William Ruto will not appear in court to testify in a case in which he is charged with publishing false information about the death of the head of state.
David Ooga Mokaya a fourth-year student at Moi University through his lawyer has urged the Milimani magistrate Benmark Ekhubi to direct the Director of Public Prosecution to supply him with witness statements including that of the president who is the main complainant.
Mokaya is charged with computer misuse and publishing false information on his X account about the military in ceremonial uniform leading a funeral procession with a casket wrapped with the Kenyan flag allegedly containing the president’s remains leaving Lee Funeral Home.
The Law Society of Kenya which is leading the defence through Ian Mutiso and Danstan Omari said they want to be supplied with the witness statements of President Ruto who is the subject of the proceedings,
“This is a matter of great public interest as the subject of the trial is the head of state who the accused would like to cross-examine during the hearing.” Mutiso told the court.
He further questioned why the DPP had not supplied the accused with all the witness statements and exhibits to be relied upon during a trial.
Mutiso told the court that police took away all the electronic gadgets from the accused who is waiting to graduate from Moi University this December,
“The accused cannot prepare adequately for graduation because he cannot fill the relevant form and other documentation in preparation for the graduation.” Mutiso submitted.
The magistrate heard that the case against Mokaya is borne out of political malice and the DPP should come out clear to indicate whether all those people who criticize the government will be prosecuted.
Omari added that there is freedom of speech and all Kenyans must enjoy the freedom of speech and expression,
“It will be very embarrassing for the head of state to take the witness dock to state whether he was the one in that casket or he is still alive,” Omari stated.
He asked the court to take judicial notice that in the past few years, persons who have been charged for imputing anything against the president have been discharged.
He referred to a case whereby an accused person who had mimicked a former president and solicited money from a foreigner was discharged.
He also urged the magistrate to note that a hotelier who had been charged with filming Kenyatta and Raila Odinga walking at night along Nairobi City street during the COVID-19 being acquitted as both leaders could not appear in court to testify.
The lawyers questioned the territorial jurisdiction of the Nairobi court handling a matter which occurred in Eldoret yet there are competent courts to handle the matter.
The defence lawyers said that they would write the DPP to review the case to terminate it as it is of no public value.
A prosecuting counsel Virginia Kariuki said the matter is not politically instigated and the DPP’s decision to charge is not pegged on any motivation.
She said that they are not opposing a request for a review of the case.
In his ruling, the magistrate said they would wait for the opinion of the DPP on the matter before making any further comments on the issues raised by the defence.
The matter will be mentioned on January 28, 2025, for further directions.
Mokaya had denied the charges and is out on bond.