Controversial Korogocho MCA Absalom Odhiambo alias ‘Mobimba’ was freed from remand on Wednesday, February 1.
The development came after the court denied an application by the Office of the Director of Public Prosecution (ODPP) which sought to have the Nairobi County MCA detained for more days.
Mobimba was arraigned over alleged hate speech he made during the Azimio rally in Kamukunji directed towards the ruling party.
According to Milimani Principal Magistrate Gilbert Shikwe, the application filed was not based on any legal provision.
"I have looked at the case presented in court. Looked at the High Court decision making section 96A of the penal code unconstitutional and I have noted that the decision has not been challenged by the prosecution," he ruled.
"It is a nonchallenged fact that the applicant seeking orders to detain the suspect for seven days has no legal leg to stand and the only option is to dismiss." Shikwe further stated.
According to his lawyer Apollo Mboya, the case was dropped based on section 96A of the penal code which was declared unconstitutional in the 2015 incitement case that involved former Machakos Senator Johnson Muthama.
"Section 96A of the Penal Code was brought to the attention of the judge which was unconstitutional pursuant to a three-Judge bench ruling issued in 2015 against then-Senator Muthama," he disclosed.
Section 96(a) of the penal code states that the burden of proof lies upon any person who utters, prints or publishes any words or does any act calculated to bring death or physical injury to another person, class, or community.
In 2015, Muthama challenged the constitutionality of incitement charges as provided for in the section of the Penal Code where the High Court judges directed Parliament to repeal the section.
The section however remains unamended thus hate speech offense is not recognised in law.
On Monday, January 30, DCI officers picked the MCA at the National Cohesion and Integration Commission (NCIC) offices where he had been summoned over his incitement remarks.
He would later be reported missing by his lawyer Apollo Mboya who alleged that Mobimba was not booked in any of the police stations they had searched.
