A Nairobi court has dismissed an application by the police that sought to detain Korogocho MCA Absalom Odhiambo for seven days pending investigations in the alleged hate speech case.
Milimani principal magistrate Gilbert Shikwe ruled that the application filed was not based on any legal provision.
He directed the police to release Odhiambo with immediate effect.
"I have looked at the case presented in court. Looked at the High Court decision making section 96A of the penal code unconstitutional and I have noted that the decision has not been challenged by the prosecution," Shikwe said.
"It is a nonchallenged fact that the applicant seeking orders to detain the suspect for seven days has no legal leg to stand and the only option is to dismiss."
"He is hereby released unconditionally unless unlawfully held."
The magistrate further put on the spot Attorney General for sleeping on his work for failing to present an amendment of the law as directed by judges of the High Court.
In the morning, the defence lawyers led by Danstan Omari put the ruling on a halt after they presented another application.
The incitement to violence case against the MCA took a new twist after lawyer Danstan Omari brought to the attention of the court that Section 96A of the Penal Code under which the MCA was arrested, is constitutional pursuant to a three-Judge bench ruling issued in 2015.
According to the defence, politician Johnstone Muthama in 2015 challenged the constitutionality of incitement charges as provided for in the said section of the Penal Code where the High Court judges directed Parliament to repeal the section.
However, the section remains unamended hence hate speech offense is no longer recognised in law, the court was told.
"The section which my client was arrested and brought here shows that the court has no business as per the High Court ruling to hold the MCA even for a second" the lawyer argued.
The magistrate agreed with the defence by saying, "the ruling is properly arrested before it would be delivered hence he could not deliver it as it was scheduled."
The case was then adjourned to 2 pm when the court was expected to give a determination to whether to allow the seven-day detention or release the MCA.
In the application presented before the court, the police want the MCA detained for them to complete investigations on allegations that he uttered words that are likely to cause violence or destabilise the nation.
The police argued that they needed seven days to retrieve any possible inciting, messages from his phone and record statements for the state to enhance evidence for the prosecution.
Odhiambo was arrested while he waited to talk to National Cohesion and Integration Commission officials at their Upper Hill offices.
He was waiting to record a statement.
The Commission had summoned Odhiambo over remarks he made during an Azimio grassroots leaders meeting hosted by ODM leader Raila Odinga on Wednesday last week.
Speaking during the rally, Odhiambo allegedly used inciteful words.
He asked Raila to allow them to go to State House and forcefully eject Ruto.
"Nataka tuingie town, tufunge biashara. Hakuna biashara itaendelea hii town ya Nairobi. Ndio William Ruto aheshimu Raila Odinga lazima tufunge biashara hii town," he said.
This translates to, "For national politics, Baba there is no other way. We want to go to State House and remove that thief... I want us to go to town and close businesses. No business will be conducted in the Capital city of Nairobi. For William Ruto to respect Raila Odinga we must close businesses in this town."
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