By Eric Winston/Guest Writer

The high court has quashed a defamation case against journalist Kurgat Maridany saying it was a classic abuse of  power by the Director of Public Prosecutions.

On the flip-side, the journalist may have been handed a green-light to pursue a case against the state for compensation against malicious prosecution.

Justice John Mativo upheld Maridany’s petition challenging his prosecution and termed the criminal case in which he had been charged with defamation as a continued enforcement of “unconstitutional law and a gross violation of fundamental human rights.”

Abuse of power

The judge also said Maridany’s case was an abuse of prosecutorial powers and amounted to harassment!

Justice Mativo went ahead to prohibit further prosecution of the case.

Maridany had been charged in a Kajiado court in April 2015 and was out on a cash bail  after  county commissioner Harsama Kello lodged a complaint of defamation.

He challenged the criminal libel case, saying it served to undermine the freedom of expression and independence of media.

Maridany questioned the constitutionality of Section 194 of penal code under which he was charged with criminal libel.

Defending freedom of expression

Through Article 19 Eastern Africa, an NGO dedicated to defending freedom of expression and information, Marindany  challenged the constitutionalilty of Section 194 on grounds that  it imposes criminal sanctions for a wrong that can be remedied through civil proceedings.

The court had outlawed the section in a separate case involving a blogger.

“The criminalisation of libel and imposition of criminal sanctions thereto, is disproportionate to the purpose it seeks to serve and is not justifiable in an open democratic society…” judge Mativo said.

 Justice Mativo said the impugned legislation challenged “has potential of severely undermining constitutional rights and individual freedoms such as the freedom of expression.”

The Bill of rights too, the judge said, gives all persons the right to freedom of expression which cannot be limited by an archaic law.

What Kajiado governor said

In the criminal case which was pending in Kajiado, Maridany denied he published a story with intent to defame Kello on April 2, 2015.

The story revolved around what the Kajiado governor Dr David Nkedianye had said about the county commissioner Kello who was later accused of using the police, the DPP and the court to harass the reporter.

Maridany had been charged with publishing a defamatory “matter” with intent to injure the character of Kajiado County Commissioner, Harsama Kello.

Land grabber

In the police charge sheet it is alleged Marindany on the April 2 2015 at Maasai Technical Training Institute in Kajiado with intent to defame Kello published in the Star newspaper that the commissioner cried for 20 minutes after Governor David Nkedianye called him a land grabber.

Justice Mativo declared that the continued prosecution is an abuse of prosecutorial powers and that the enforcement of Section 194 is unconstitutional.

“It is a non-existent law…” Justice Mativo said.

The judge directed that a copy of the judgment be supplied to the DPP.

“The rule of law and human rights must be observed at all times and court orders must honored under the new transformative constitution especially in an open and democratic society such as Kenya,” the judge said.