Court rejects State's bid to detain Omtatah, 22 others for 14 days, grants them Sh1,000 cash bail

Principal Magistrate Rose Ndombi of the Milimani law courts on Tuesday rejected state application for custodial orders to detain Busia Senator Okya Omtatah and 22 other activists pending investigations and released them on a cash bail of Sh1,000.

Ms Ndombi said the ongoing investigations do not require the activists to remain in incarceration.

She said she considered Article 29 of the constitution that outlines the rights and freedoms of accused persons.

The Article states that arrested persons have rights of freedom and security and the same includes the right not to be deprived of freedom arbitrarily or without cause.

"My analysis as far as bond and bail is concerned, the nature of offences as stated disclosed do not warrant detention of the respondents (activists). The state has failed to prove that the investigations would call for limitation of the respondents' liberty to facilitate them to conduct the investigations," stated Ms Ndombi.

The Directorate of Criminal Investigations and the office of the Director of Public Prosecutions had requested for the orders to hold the suspects to allow investigations into cases of incitement to violence and disobedience contrary to section contrary to section 96 of the Penal Code.

Others include creating a disturbance in a manner likely to cause a breach of peace in contravention of section 95 (1) and taking part in unlawful assembly contrary to section 78 (1) as read with section 79 of the Penal Code.

"It necessary and desirable for the respondents (the activists) to be remanded at the Central Police Station within Nairobi County for a period of 14 days," stated the application by Corporal Anthony Kerini of Nairobi Central DCI offices.

"The respondents (the activists) are a threat to peace and stability of the country as they continuously incite members of the public via social media platforms, if released therefore they will cause disharmony in the country. For the interest of justice, I pray this court to grant me 14 days to detain the respondents to complete my investigations and over the above points."

The mobile phones of the 23 have been confiscated and handed over to the Communication of Authority (CA) Kenya for extraction of the WhatsApp, X, and Facebook messages and photographs taken that are inciting the members of the public against the state.

But lawyers for the activists led by Wiper Party leader senior counsel Kalonzo Musyoka and his counterpart Martha Karua among others opposed the application.

Kalonzo said the application is a petition to allow violation of the constitutional rights of Kenyans.

Kalonzo said the state is treating the activists demanding accountability and end of abductions of government critics as terrorists yet picketing is a constitutional right.

Karua notified the court that Omtatah had been injured during the arrest and has been denied medication.

Lawyer Ndengwa Njiru also objected to the application dismissing the application as defective because it seeks custodial of activists for offences punishable by a fine only and a jail term not exceeding six months.

Ms Ndombi said the state did not disclose compelling reasons to warrant the detention period sought.