Naivasha Member of Parliament Jayne Kihara was on Friday arraigned before the Milimani Law Courts to face charges of offensive conduct.
However, the MP did not plead to the charges after her legal team strongly objected arguing the charge sheet did not disclose any offence.
Appearing before Magistrate Benmark Ekhubi, Kihara’s lawyers led by Senior Counsel Kalonzo Musyoka and advocate Ndegwa Njiru urged the court to reject the plea taking and dismiss the charges, terming the prosecution a politically motivated witch-hunt.
“We urge you not to have the MP plead to the charges as we believe her prosecution is pure political persecution. The charges before you are based on a section that is non-existent in law,” Kalonzo submitted.
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“Your Honour, freedom of expression is expressly provided for under the Constitution. The charges that have been brought against MP Kihara don’t disclose an offence.”
According to the charge sheet, MP Kihara is accused of allegedly uttering offensive words with intent to provoke a breach of the peace during a public gathering in Nairobi County on July 8, 2025.
Kalonzo further informed the court that other legislators had made similarly provocative statements in public without facing legal consequences.
“It is that men and women, and MPs including Kihara, if they were to be arraigned in court, this would be the worst-case scenario. Some MPs out there on record saying they would transport goons to make sure that Saba Saba did not happen, and they have never been arrested or arraigned,” he said.
The defence urged the court to declare the charge illegal and defective.
“We urge this court to find that the charges are illegal, defective, and release her unconditionally,” Njiru told the court, asking the magistrate to invoke powers under Section 4 of the Magistrates Act.
Referring to Article 33 of the Constitution on freedom of expression, Njiru called on the court to determine whether the incitement charge amounted to “a denial, violation or infringement of a right or a threat to a fundamental freedom.”
He questioned the legality of the provision under which Kihara was charged, Section 94(1) of the Penal Code, saying it was outdated and inconsistent with the 2010 Constitution.
“The section under which this charge has been framed Section 94(1) of the penal code, was enacted in 1930, with the commencement date being August 1, 1930. It follows, therefore, that with the enactment of the new Constitution, the ODPP, who has arraigned MP Kihara here, ought to be alive to Section 7 of the Sixth Schedule of the Constitution,” said Njiru.
“While I’m not inviting you to look at the constitutionality of that provision, I’m inviting you to look at whether or not the application of that section falls within the provision of Section 80 of the Magistrates Act,” he added, insisting that it is unlawful for someone to be charged with a non-existent offence.
“If we had a proactive Parliament, this section would not be existing in our books,” he continued.
“But Parliament has become negligent. Are we left helpless? Does the DPP have the liberty to charge any other person because Parliament has refused to legislate?”
Njiru concluded by urging the court to consider Articles 19, 21, 27, and 33 of the Constitution, along with Section 89 of the Criminal Procedure Code, to determine whether the court can decline to proceed with such a charge.
The case is currently ongoing with the DPP through state prosecutor Victor Owiti vehemently opposing the request by MP Kihara lawyers to halt her prosecution.
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Naivasha Member of Parliament Jayne Kihara was on Friday arraigned before the Milimani Law Courts to face charges of offensive conduct.
However, the MP did not plead to the charges after her legal team strongly objected arguing the charge sheet did not disclose any offence.
Appearing before Magistrate Benmark Ekhubi, Kihara’s lawyers led by Senior Counsel Kalonzo Musyoka and advocate Ndegwa Njiru urged the court to reject the plea taking and dismiss the charges, terming the prosecution a politically motivated witch-hunt.
“We urge you not to have the MP plead to the charges as we believe her prosecution is pure political persecution. The charges before you are based on a section that is non-existent in law,” Kalonzo submitted.
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“Your Honour, freedom of expression is expressly provided for under the Constitution. The charges that have been brought against MP Kihara don’t disclose an offence.”
According to the charge sheet, MP Kihara is accused of allegedly uttering offensive words with intent to provoke a breach of the peace during a public gathering in Nairobi County on July 8, 2025.
Kalonzo further informed the court that other legislators had made similarly provocative statements in public without facing legal consequences.
“It is that men and women, and MPs including Kihara, if they were to be arraigned in court, this would be the worst-case scenario. Some MPs out there on record saying they would transport goons to make sure that Saba Saba did not happen, and they have never been arrested or arraigned,” he said.
The defence urged the court to declare the charge illegal and defective.
“We urge this court to find that the charges are illegal, defective,
and release her unconditionally
,” Njiru told the court, asking the magistrate to invoke powers under Section 4 of the Magistrates Act.
Referring to Article 33 of the Constitution on freedom of expression, Njiru called on the court to determine whether the incitement charge amounted to “a denial, violation or infringement of a right or a threat to a fundamental freedom.”
He questioned the legality of the provision under which Kihara was charged, Section 94(1) of the Penal Code, saying it was outdated and inconsistent with the 2010 Constitution.
“The section under which this charge has been framed Section 94(1) of the penal code, was enacted in 1930, with the commencement date being August 1, 1930. It follows, therefore, that with the enactment of the new Constitution, the ODPP, who has arraigned MP Kihara here, ought to be alive to Section 7 of the Sixth Schedule of the Constitution,” said Njiru.
“While I’m not inviting you to look at the constitutionality of that provision, I’m inviting you to look at whether or not the application of that section falls within the provision of Section 80 of the Magistrates Act,” he added, insisting that it is unlawful for someone to be charged with a non-existent offence.
“If we had a proactive Parliament, this section would not be existing in our books,” he continued.
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“But Parliament has become negligent. Are we left helpless? Does the DPP have the liberty to charge any other person because Parliament has refused to legislate?”
Njiru concluded by urging the court to consider Articles 19, 21, 27, and 33 of the Constitution, along with Section 89 of the Criminal Procedure Code, to determine whether the court can decline to proceed with such a charge.
The case is currently ongoing with the DPP through state prosecutor Victor Owiti vehemently opposing the request by MP Kihara lawyers to halt her prosecution.
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By Nancy Gitonga