TNA Nominated Senator Emma Mbura suffered a blow after Mombasa Principal Resident Magistrate Nicholas Njagi dismissed an application by the state to charge activist Kalinga Mgandi. In the court application, Senator Mbura wanted the court to compel Jubilee Alliance activist Kalinga Mgandi to disclose his Personal Identification Number (PIN) of his phone to enable police to verify his WhatsApp account.
Kalinga had allegedly abused the Senator on Whatsapp. He also stated in court that he has been having sexual relations with the Senator, which ended his marriage.
Kalinga was facing four charges on improper use of a licensed telecommunication system, contrary to Section 29 of the Kenya Information and Communications Act (KICA).
The magistrate ruled that the court had a duty to protect the rights of an accused person and it was the duty of the court to adhere to article 50 of the constitution that called for a fair trial.
When he appeared in court on March 22nd 2016, Kalinga was officially charged and released on a bond of sh200,000 or cash bail of sh100,000.
It is alleged that he recorded an audio with abusive words and shared them using Whatsapp. In the recording, he also stated to have had sexual relations with Senator Emma Mbura for a long time.
The magistrate further said that the application did not have merit and was brought to the court under irrelevant provisions of the law.
This comes days after the High Court has declared Section 29 of the Kenya Information and Constitution Act unconstitutional.
The Section stated that
“A person who by means of a licensed telecommunication system sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.”
In her ruling, Lady Justice Mumbi Ngugi, affirmed that the provision contravenes Article 33 of the Constitution on freedom of expression and impedes the rights to a fair trial. She advised that anyone who feels their reputation is at risk to use defamation laws to seek redress in the courts.