Public Disgrace: DPP on the spot for trumped up charges yet again

A court in Nairobi has called out the Director of Public Prosecution Renson Ingonga for approving vague charges weaponizing intellect and free speech, in a classical case of abuse of criminal justice system. 

Rose Njeri, an IT guru, was traced and hauled by 15 police officers into their Subarus. Then, she was driven to Pangani Police Station where she was detained in a famous style 'kamata kamata Friday' before being dragged to court. 

The court, however, found on Friday that the charges approved by Ingonga did not meet the legal standard. This suggests either a hurried process to silence critics of the Kenya Kwanza administration or fabricated charges to impede scrutiny. 

The attempt not only failed but also backfired after Milimani Principal Magistrate Geoffrey Onsarigo issued a detailed ruling on Friday, dismissing the charges brought against Njeri by the Office of the Director of Public Prosecutions (ODPP) because the accusations did not disclose any cognisable offence under Kenyan law. 

“I hereby refuse to admit the two counts before this court and proceed to discharge Rose Njeri under Section 89(5) of the Criminal Procedure Code,” Magistrate Onsarigo declared. 

The court determined that the two charges of unauthorised interference with a computer system, contrary to Section 16 of the Computer Misuse and Cybercrimes Act (2018), brought against Njeri lacked specificity, failed to show criminal intent, and did not meet the legal threshold for prosecution. 

"I reach the finding that the two counts as presently drafted by DPP do not disclose an offence and therefore they are ambiguous," Magistrate Onsarigo ruled. 

The Act was passed and assented into law by former President Uhuru Kenyatta after the High Court invalidated yet another law that was being used by the Jubilee regime to harass and intimidate bloggers and journalists. 

There is already a case before the High Court from 2018 which is unresolved, questioning the Computer Misuse and Cybercrimes Act. True to the fears Geoffrey Maina, the petitioner, it is being used to muzzle free speech. 

His lawyer Peter Wanyama argued that the Act is against freedom of expression and right to privacy. 

Wanyama further argued that the government’s ability to sniff into people’s WhatsApp and Facebook accounts without consent or court orders infringes on their privacy rights. 

In this case, stated would be a tool by the State to muzzle anyone who holds a contrary opinion to the leaders and the hefty fines introduced are meant to silence the majority of Kenyans who cannot afford to pay the millions. 

“The Act threatens among others Kenya’s rights to privacy under Article 31 of the Constitution, freedom of expression and opinion, freedom of the media and the right to fair trial,” said Wanyama. 

According to the lawyer, there is an overlap of the laws on defamation, hate speech and misuse of gadgets that provide for similar punishments. 

The contested law went through Parliament despite protests from the media that it could be used to stifle press freedom and free speech. 

In the law, cyber-stalking and cyber-bullying, publishing false information, child pornography, cyber espionage, and computer forgery, fetch between two years in jail or a fine of Sh 5 million and 30 years or Sh 20 million in fine. 

Sharing false news and spreading hate speech has Sh5 million fines a two-year prison sentence, or both. 

On the other hand, those who sell or share illicit sex in the internet will get Sh300,000 or 30 years in prison or both. 

Clause 12 of the contested law reads: "A person who intentionally publishes false, misleading or fictitious data or misinforms with the intent that the data shall be considered or acted upon as authentic, with or without any financial gain, commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.” 

Those implicated in spreading child pornography have Sh20 million or 25 years in prison or both on their necks. 

To curb the spread of terrorism through the internet, cyber terrorism, MPs agreed to dangle a maximum of Sh5 million in fines 10 years in prison or both.

Maina argued that the law was hurriedly passed and that there was no public participation.

“Even more worrying is the fact that the Act sets out harsh penalties which might serve to impede the right of access to information as whistle-blowers would fear that they might be subjected to these punitive laws,” added lawyer Wanyama.

In its reponse, the government claimed that it intended to deal with thefts, privacy breach, cyber bullying and even bank account hacks.

The multiple laws passed by Parliament regarding cybersecurity and enacted into law by the President Ruto have created a pathway for abuse and harassment.

Njeri, blogger Cyprian Nyakundi, and the government’s digital strategist and blogger Dennis Itumbi are among the Kenyans who have fallen victim to arrests under the cyber law.

Itumbi was arrested by the Directorate of Criminal Investigations (DCI) five years ago over an alleged fake letter that detailed a supposed plot to assassinate President William Ruto, who was then Deputy President.

He was accused of posting the letter on WhatsApp Group which then belonged to the Tanga Tanga movement, which was allied to Ruto.

The other charge against him was that he had allegedly reprogrammed a mobile phone, which was against Section 84(G) of the Kenya Information and Communication Act.

The court dropped Itumbi’s charges in 2023 after finding that Section 66(1), which he had been accused of violating, had been declared unconstitutional.

Section 66(1) stipulated that any person who published a false statement, rumour, or report likely to cause fear and alarm to the public or disturb the peace was guilty of a misdemeanour.

It fell out of the law books after Justice Weldon Korir found that it was unconstitutional.

Unfortunately, Albert Onjwang paid with his life over the same cybercrime law.

Under the IT laws, the government acts as the moral police. The laws passed by the National Assembly are so absurd that Members of Parliament came up with one that made it illegal to post vulgar or lewd information online; simply put, they did not want Kenyans to curse or insult anyone.

However, Justice Wilfrida Okwany in her verdict, declared section 84 (b) of the Kenya Information and Communication Act (KICA), found that I was too vague and against the right to information.

According to the judge, the section was also crafted broadly, such that anyone accused of committing a crime cannot effectively put up a defence.

“The impugned provides for an offence in such broad terms that the accused cannot answer. That law does not explain who and how it will be determined who will be influenced by the matter,” ruled Justice Okwany.

According to the outlawed section, it is illegal to post information relating to lust and sex or encourage or raise interest in sexual matters among others.

The punishment for such posts is two years in prison or a fine of Sh 200,000 or both.

At the centre of the dispute was Nyakundi.  He had been charged before Milimani magistrates court and in Kiambu Court.

In the Milimani court case, he was accused of publishing offensive information about the then Interior Security Cabinet Secretary Fred Matiang’i on his Twitter account.

Meanwhile in Kiambu, he was charged for posting derogatory remarks against former Nairobi Governor Mike Sonko, former Kenya Power Managing Director Ken Tarus and Kirinyaga Governor Anne Waiganjo.

In Ms Waiganjo’s case, Nyakundi was said to have published obscene information, claiming to be her, on April 16, 2018. This, according to the prosecution was meant to corrupt her good image.

He moved to the High Court complaining that the charges against him were unconstitutional as it was his freedom to express himself and criticise leaders.

In reply, the Attorney General and Director of Public Prosecution argued that freedom of expression was limited in a bid to ensure that individuals would abuse telecommunication gadgets and also ensure that individuals do not promote or carry information which is against Kenyan values.

While opposing the case, the State argued that there was a legitimate complaint filed against the blogger and that he had been afforded a fair opportunity to argue his case.

Justice Okwany however found that leaders ought to take up criticism and act on issues raised by the citizens.

“The section is unconstitutional in so far as it suppresses freedom of expression and denies an accused person the right to a fair trial through ambiguity. It is vague. The law creating a criminal offence must be clear.  The section is retrogressive to an open, modern and democratic society,” he ruled.

The outlawed section of the Act was introduced in 2009 following the growth of electronic media as a form of communication.

Fast forward to Njeri’s case, she was charged over a digital platform she had created to enable the public to express their views on the Finance Bill 2025.

According to the DPP, the platform allowed the public to send mass emails to the Finance Committee of the National Assembly.

The state, through state counsel Victor Owiti, alleged that this act amounted to unauthorized interference with a computer system, a violation of Section 16 of the Computer Misuse and Cybercrimes Act.

However, Magistrate Onsarigo found upon perusal of the offence and particulars of the charges wanting in both legal form and substance.

"Upon perusal of the entire Section 13 of the Computer Misuse and Cybercrimes Act about the alleged offence, the charges fail to meet the threshold set out under Section 16(3). They do not allege that the system crashed, stopped functioning, or caused financial loss or personal injury, nor do they claim any interference with national security. As such, the charges lack the specificity and substance required under the law,” he observed.

“The charge plainly states that the suspect sent emails to an address created to receive emails."

The court added that every Kenyan citizen is entitled to public participation, seemingly referring to the creation of a website by Njeri where Kenyans could provide their input on the 2025 Finance Bill.

Onsarigo agreed with defence lawyers led by retired Chief Justice David Maraga and Senior Counsel Kalonzo Musyoka that one cannot be charged for exercising a constitutional right.

The magistrate further cited Article 25(c) of the Constitution, affirming the right to a fair trial as non-derogable, and Article 50, which guarantees an accused person the right to be informed of charges with sufficient detail to prepare a defence.

“An accused must be charged with an offence known in law, stated clearly and unambiguously so they can plead and defend themselves adequately,” Onsarigo ruled.

The court ruling comes after Njeri lawyers had objected to her pleading to the charges on ground that they were flawed and defective.  

The defense team, which included former Chief Justice Maraga, Musyoka, Senator Dan Maanzo, Eric Theuri, Kibe Mungai, Ndegwa Njiru, and Khamwina, argued that the case was a clear abuse of prosecutorial power and the DPP was being used by the executive to silence Njeri.

Maraga argued that the charges were unconstitutional and fundamentally flawed.

He added that the prosecution’s case is built on vague accusations and a misinterpretation of Kenya’s cybercrime laws.

"The charges brought against Ms Njeri lack specificity, are poorly drafted, and fail to establish any real criminal intent,” Maraga stated, calling the case a misuse of cybercrime laws to punish digital activism.

"The law is being stretched to punish a tech worker for what is, at worst, a civic engagement tool.”

Maraga had stated that the Computer Misuse and Cybercrimes Act was designed to target malicious hackers, fraudsters, and cyber terrorists, not freelance web developers caught in business disputes.

“Charging someone like Rose Njeri under this law weaponizes legislation in a way that could stifle innovation and silence dissent in the tech sector.”

Musyoka added “If her crime is to sensitise Kenyans to say yes or no to a Finance Bill, then what crime is that? Are we criminalizing engagement now?”

Senator Dan Maanzo argued the charge violated Article 25(c) of the Constitution, which guarantees the right to a fair trial.

“It does not disclose any offence and must be struck out,” he said.

Eric Theuri, former LSK president, dismantled the notion that Njeri’s actions constituted hacking.

"The law defines cybercrime as unauthorized access or interference with a computer system, which we know as hacking. Rose did not hack anything. The email address was public and used for the very purpose she helped facilitate public participation.”

Theuri argued that public participation in the legislative process is a constitutional right, not a criminal offence.

The software tool Njeri built simply automated a civic process, making it easier for citizens to communicate with their legislators.

Mungai called the prosecution of Njeri “absurd”

“Parliament expects public participation in such a great matter of public interest. The Constitution demands it. How can someone be charged for doing what Articles 10, 118, and 3 of the Constitution require her to do?”

He added: “This is not criminal. It’s political. It’s the crime of helping the people speak up, of enabling dissent against a Finance Bill that many believe will crush the common mwananchi.”

Khamwina, another of Njeri’s lawyers, criticized the process of her arrest, arguing it was illegal, urged her unconditional release, and quashed no-existence charges.

“Rose was arrested on a Friday night, held incommunicado for nearly four days, denied bail, and not produced in court until public pressure mounted. That’s not justice. That’s harassment.”

Njeri’s arrested on May 30, 2025, over a tweet revealing the creation of the website.

"I wrote a simple programme that lets you reject the Finance Bill 2025 with just one click. Click below to send your objection," her tweet stated.

Her arrest and subsequent detention over the long Madaraka Day weekend sparked massive uproar and outrage with Kenyans calling for her unconditional release.

Civil society groups and digital rights activists mobilized under the slogan “Free Njeri! We want justice!”. 

The digital platform Njeri created was a simple tool that enabled users to input their comments on the Finance Bill, which were then compiled and sent via email to a designated parliamentary address. 

The email address was public, and the parliamentary committee had explicitly invited feedback.

Despite this, the DPP insisted the volume of emails constituted “interference.”

In discharging Njeri, the court affirmed a growing sentiment among many Kenyans that civic tech is not a crime, and the State should not use law as a tool of political intimidation.

“You cannot accuse someone of causing too many people to send emails when the address was meant to receive emails. That cannot be criminal,” said Onsarigo

Speaking after the ruling, Former LSK boss Theuri noted that Magistrate Onsarigo’s ruling reinforced the principle that the state cannot fabricate offences by stretching laws beyond their original intent.

“We need safeguards to ensure this law is used to stop real cybercrime, not civic engagement,” said digital rights advocate Wangari Kimani, outside the courtroom.

The case of Njeri will be remembered not just for its outcome, but for the profound questions it raised about law, democracy, and digital rights in country.

It exposed the risks of legislative overreach and reminded the nation that democracy is not just about elections, it is about participation, voice, and the freedom to dissent.

As Njeri left court, surrounded by her lawyers and supporters, her message was clear that justice had prevailed and the constitution should be upheld.

“This wasn’t about me alone. It was about our right to speak, to participate, and to build a better Kenya together.”

She also expressed joy with the decision by the court to discharge her over illegal charges that had been framed against her.

"I am happy with all the support that Kenyans have given me since I was arrested, and l am also happy with the court decision. May justice prevail," she added.