Korogocho MCA Absalom Odhiambo, commonly known as Matakwey Mobimba is now a free man.
Mr Odhiambo was freed unconditionally after trial magistrate Gilbert Shikwe ruled he was arrested and detained based on a non existent law.
In his ruling, the magistrate blasted the police and prosecution for being insensitive to the changes in the law while seeking orders to detain the MCA.
Mr Shikwe noted that the Inspector General of Police and the Directorate of Criminal Investigations should have known that the law in which they relied in seeking detention orders have been expunged from the statutes.
The said law therefore doesn’t exist in the legal books having been declared unconstitutional by appeal Judges Jessit Lesiit, John Mativo and Luka Kimaru.
Mr Shikwe said the prosecution did not challenge the application to discharge the MCA over the impugned law.
“As it is now, the application remains unchallenged and I order the immediate release of Mr Odhiambo unless lawfully held,” ruled the magistrate.
The magistrate also put the Attorney General on the spot for sleeping on his work for failing to present amendments to the law to Parliament as directed by the appeal court judges.
The AG had been given one year to make the amendment in the law which he has not done to date.
“The application by the DPP and DCI had no legs to stand on as it it so based on non-exsiten lawt. I hereby dismiss the application and order the unconditional released of the MCA unless lawfully held.
The court further noted that hurried manner in which the
State dashed the MCA to court leaves alot to be desired.
The Magistrate concurred with defence lawyers Sam Nyaberi and Danstan Omari that one cannot be held on non-existent law.
The lawyers had urged the court to discharge their client claiming police are using outlawed laws to secure his illegal detention.
Mr Omari asked the court to invoke the ruling which declared Section 96 of the Penal Code annulity and discharge the MCA forthwith.
Mr Omari cited the decision where the famous Pangani six including former Machakos Senator Johnson Muthama and two CS’s Moses Kuria (Trade) and Aisha Jumwa (Public Service) Ferdinand Waititu and two others were discharged of allegations of incitement to violence.
“We urge this court to discharge the suspect unconditionally as the offences he is being investigated does not exist in law,” Lawyer Omari stated
Immediately after his release the MCA, while addressing the media outside the courts stated that he will persue the DCI, IG, AG and DPP for illegal arrest and detention which has caused him embarrassment and disrepute.
The MCA had spent two nights in custody at Central Police Station over allegations of incitement to violence and disobedience of the law over utterance he made during a meeting at Chungwa House in Capitol Hill on January 25.
At the same time, It has emerged that NCIC has summoned six other MCAs including Nairobi Majority Leader Peter Imwatok over undisclosed offences.
The six are set to appear before the commission on Tuesday next week.