Activist Morara Kebaso a free man as court dismisses cyber harassment charges

Onyina agreed with Morara's lawyers that the charge sheet containing the charges against the activist was defective, as it included mismatched information about the offence.

The Office of the Director of Public Prosecutions (DPP) had intended to charge Morara with cyber harassment, contrary to Section 27 (1) and (2) of the Computer Misuse and Cybercrime Act No. 5 of 2018.

However, Senior Counsel Martha Karua and lawyer Pareno Solonka objected to the charges and urged the court to reject the "defective" charge sheet.

Morara's lawyers argued that the information in the charge sheet did not establish a charge of cyber harassment and also failed to identify the complainant in the case.

They further stated that the particulars of the charge pertained to defamation, which is no longer a criminal offence but a civil wrong.

They claimed that Morara was unable to understand what he was responding to, and the court has the discretion, under Section 39 of the Criminal Procedure Code, to reject the charge because the particulars of the offence did not support the charge.

However, the DPP's Dancun Ondimu countered, saying, "The particulars are sufficient to enable the accused person to respond to the charge, and the court should not delve into the merits or demerits of the case at this stage."

Section (1) of the Cybercrime Act stipulates that a person who, individually or with others, wilfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence if they know or ought to know that their conduct is likely to cause that person apprehension or fear of violence, or damage or loss to their property.

Section (2) further states that it is an offence if such communication detrimentally affects that person or is, in whole or in part, of an indecent or grossly offensive nature.

A person who commits an offence under subsection (1) is liable, upon conviction, to a fine not exceeding Sh20 million or imprisonment for a term not exceeding ten years, or both.

The particulars of the charges against Morara allege that on September 28, 2024, at an unknown location within the Republic of Kenya, jointly with others not before the court, while using the X account @MoraraKebasoSenior, he knowingly and without lawful excuse posted false information.

"The content, which you knew to be false, was calculated to tarnish and discredit the reputation of David Langat," the charges read.

In his ruling, Onyina stated that the charge sheet does not specify under which of the three paragraphs of Section 27 of the Act the charge has been preferred – whether paragraph (a), (b), or (c), or some or all of them.

The magistrate emphasised that clarity in framing a charge is a requirement under Section 144 of the Criminal Procedure Code (CPC).

Onyina added that, according to the law, every charge or information shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged and states particulars necessary for providing reasonable information as to the nature of the offence charged.

"The particulars of the offence or the body of the charge sheet must, therefore, capture all the elements of the offences charged, and it is only then that the particulars disclose the information of the charge," stated Onyina.

"In this case, the particulars of the offence do not capture or outline the elements of the offence of cyber harassment as defined under Section 27, subsection (1) of the Computer Misuse and Cybercrime Act," Onyina concluded.