A Nairobi court has acquitted ICT Chief Administrative Secretary (CAS) Dennis Itumbi who had been charged with authoring and circulating a fake assassination letter against President William Ruto.
While discharging the criminal charges against Itumbi and his co-accused Samuel Gateri, Milimani Chief Magistrate Susan Shitubi ruled that the section under which the two were charged was unconstitutional.
"It is very unfortunate that l am acquitting the accused persons at the tail end of the hearing of the case. However, the law allows me to acquit the accused if it emerges the section under which they were charged was unconstitutional. I will therefore proceed to acquit the two accused persons under section 87(b) of the Criminal Procedure Code," Magistrate Shitubi ruled.
Under section 87(b) of the CPC, the court can acquit a suspect who has been put on his defence in a criminal case.
Itumbi and Gateri had been put on their defence for allegedly forging a letter alluding that a senior government official in the former President Uhuru Kenyatta's regime had hatched a plot to eliminate the then Deputy President, now Head of State.
The plot to kill Ruto was said to have been planned at La Mada Hotel in Nairobi County.
The magistrate, however, gave the office of the Director of Public Prosecutions (ODPP) 14 days to appeal.
The decision to drop the charges was protested by the office of the DPP, who said the move was illegal and an "ambush".
"You honour we oppose the application by the defence to withdraw the charges on the basis that it is an ambush to the DPP and we need time to respond on the same," the state prosecutor submitted.
Itumbi, through his lawyers Katwa Kigen and Adrian Kamotho, urged the court to drop the charges against them saying the section under which they were charged was unconstitutional.
"You honour the charges facing the accused persons herein are defective as they are stipulated under section 66 of the penal code which was declared unconstitutional by the High Court in the case filed by blogger Cyprian Nyakundi. We there seek you adopt the same and discharge the accused," Lawyer Katwa Kigen said.
The new development comes days after the court on Wednesday, June 7 adjourned the defence hearing to July 28, 2023, after the DPP said he could not proceed with the case as the police file was not availed in court.
Itumbi, a famous blogger at the time and now serving as CAS in the Ministry of ICT, was found with a case to answer and placed on his defence in 2022 after the court ruled that the prosecution had proved their case beyond a reasonable doubt.
Witnesses who testified in the case claim that police investigations established the post, which was circulated on social media, was sent from Gateri’s cell phone number.
Itumbi and Gateri had been charged with publishing a false statement, contrary to Section 66(1) of the Penal Code.
They had denied that on or before June 20, 2019, at an unknown place, they published a letter dated May 30 2018, with intent to cause anxiety to the general public.
Charges against Itumbi
Itumbi was accused of posting the letter in a WhatsApp group of know as 'Tangatanga' team allied to the then DP.
Itumbi was separately charged with making a false document. He is indicted with making a letter dated May 30, 2019, purporting it to be a genuine letter written by a former Cabinet Secretary.
The third charge against Itumbi is that of re-programming a mobile phone contrary to Section 84(G) of the Kenya Information and Communication Act.