SENATOR James Orengo has asked a court to dismiss a hate speech and incitement to violence case against former Moi university student leader and avid blogger Seth Odongo aka Dikembe Disembe that arose from an inflammatory post seen on Social Media.
The veteran lawyer submitted that there was no strong case established against the blogger to put him on his defence.
“The records speak for themselves how the case has been prosecuted,” Orengo said.
He said the star prosecution witness gave evidence but “disappeared” midstream without due cross examination.The infamous ‘doctor’ James Ndichu Mugo Wa Wairimu was the first prosecution witness in the case.
“This James Ndichu became an accused person in a criminal case number 1647/15 which is before your honour,” Orengo said.
He invited the trial court to take judicial notice of the proceedings and “appreciate why the proceedings have gone they way they have.”
Orengo said the electronic evidence that was downloaded and produced in court had several inconsistencies that went unexplained.
“There was no evidence to prove ownership and administration of that platform,” Orengo said in reference to a Facebook account linked to Disembe.
Bogus and fake material
He said only an expert would have helped establish the authenticity of the account in question, thanks to the proliferation of bogus and fake material spewed on Social Media.
“There is no sufficient evidence to prove beyond reasonable doubt that this was an account kept by the accused person,” Orengo submitted.
Turning to the charge of hate speech and incitement to violence, Orengo took a jab at the prosecution saying there was no evidence brought in court to show that there was harm or violence perpetrated on account of the words posted on the platform-or by that a certain people were targeted.
He said there was no “sufficient crystallisation” for the court to come to a conclusion that the intended consequences were as laid down on the charge sheet.
Orengo also asked the trial magistrate Francis Andayi to “note the legal hurdles that on several occasions forced the prosecution to amend the charges.”
The prosecution said the fact that Ndichu is facing criminal cases in the same court does not make his evidence weak or unreliable.
Sedated female patient
Ndichu is facing a case in which he is charged with raping a sedated female patient and another in which he is charged with obtaining Ksh100k from a businesswoman in Nairobi.
“Nothing stops him from testifying…” prosecutor Solomon Nauliakha said in rejoinder to Orengo’s submission.
He said three witnesses testified in the case and the exhibits brought to court demonstrated that an offence was committed.Ruling on whether to put Odongo on his defence is on May 24 2018.