The Mombasa Law Courts / BRIAN OTIENO
A criminal case against a Mombasa woman accused of publishing false information online has been terminated after the Office of the Director of Public Prosecutions (ODPP) withdrew the charges.
The ruling brings to an end the prosecution of Matilda Kinzani, personal secretary to businessman Mohammed Jaffar, who had been charged under the Computer Misuse and Cybercrime Act.
The case arose from a complaint by businessman Abubakar "Abu" Joho, brother of former Mombasa governor and Cabinet Secretary Hassan Joho.
Kinzani was charged on August 16, 2024, with four counts of publication of false information contrary to Section 23 of the Computer Misuse and Cybercrime Act, 2018.
According to the charge sheet, the prosecution alleged that Kinzani published messages on WhatsApp containing claims about Abu Joho that were said to be false and likely to damage his reputation.
The charge sheet also referred to other allegations relating to his business dealings and public affairs, all of which formed the basis of the prosecution's case.
In a ruling delivered on Thursday, Senior Resident Magistrate David Odhiambo allowed an application by the prosecution to terminate the case after the ODPP informed the court that it no longer wished to proceed with the charges.
"In the circumstances, I hereby allow the application by the prosecution to have the charges against the accused terminated under Article 157(6)(c) of the Constitution as read with Section 25(1) of the Office of the Director of Public Prosecutions Act. The cash bail paid for the accused shall be released to the depositor," Odhiambo ruled.
The prosecution had already called five witnesses and closed its case. Kinzani was represented by advocates Michael Oloo and Jared Magolo.
During the proceedings, the Court of Appeal, in a separate matter, declared Sections 22 and 23 of the Computer Misuse and Cybercrime Act unconstitutional.
Following that decision, Magolo filed an application dated May 21 seeking to have the charges struck out, arguing that the provisions under which Kinzani had been charged were no longer valid in law.
The defence submitted that an accused person can only be prosecuted for an offence recognised by law and argued that the charges had therefore become a nullity.
State Counsel Kimanthi subsequently informed the court that the prosecution wished to discontinue the case under Section 25(1) of the Office of the Director of Public Prosecutions Act, which permits the Director of Public Prosecutions to discontinue criminal proceedings before judgment.
The defence urged the court to terminate the proceedings in a manner that entitled Kinzani to an acquittal under Article 157(7) of the Constitution.
The prosecution told the court it had no intention of charging Kinzani again on the same allegations.
In his ruling, Magistrate Odhiambo observed that the prosecution had acknowledged difficulties with continuing the case and allowed the application to terminate the proceedings.
The ruling relates to the continuation of the prosecution and does not determine the truth or otherwise of the allegations that formed the basis of the original charges.
