The High Court has today ordered the Director of Public Prosecutions (DPP) to stop prosecuting journalist Kurgat Marindany on criminal defamation charges because the law was declared unconstitutional. Delivering the judgment, Justice John Mativo said that Section 194 of the Penal Code is unconstitutional and its continued enforcement is unconstitutional.

The case arose after Mr. Marindany, a Star Reporter was charged with Criminal Defamation (Section 194 of the Penal Code) for writing a story describing what the Kajiado Governor uttered about the County Commissioner Harsama Kello  at a public rally.

On 31st March, 2015, the journalist was covering the launch of the Kajiado County Land Policy at the Maasai Technical Training Institute which was being presided over by the Governor of Kajiado County, H.E Dr. David Nkedianye and the County Commissioner of Kajiado County, Mr. Harsama Kello.

In the Course of the event, the Governor publicly rebuked the County Commissioner by describing him as “a land grabber”, remarks which did not go down well with Mr. Harsama Kello. Journalist Kurgat Marindany observed that the County Commissioner had watery eyes which he naturally interpreted as crying as a result of the accusations and remarks of the Governor of Kajiado County.

When the story was published, Kurgat was arrested at the behest of County Commissioner Kello. He was later charged under Section 194 of the Penal Code. The section read

“Any person who, by print, writing, painting or effigy, or by any means otherwise than solely by gestures, spoken words or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other person, is guilty of the misdemeanour termed libel.”

But Justice Mativo noted that the section had already been declared unconstitutional in February. The Court concluded that the invocation of criminal defamation for the purpose of protecting a personal reputation was “clearly excessive and patently disproportionate” and that there was an alternative civil remedy for defamation.

The Judge asserted that Kurgat’s continued prosecution amounts to abuse of prosecutorial powers. He gave orders to quash the criminal case at Kajiado and prohibit against his continued prosecution.

Justice Mativo reiterated that the rule of law and human rights must be observed at all times and that court orders must be honoured under the new transformative Constitution especially in an open and democratic society such as Kenya.