Court dismisses cybercrime charges against Morara Kebaso

Milimani Chief Magistrate Lucas Onyina has thrown out cyber harassment charges against activist Morara Kebaso and ordered his cash bail of Sh50,000 deposited on Tuesday, be returned to him.

Mr Onyina agreed with Morara’s lawyers that the charge sheet containing the charges against the activist was defective by containing mismatching information about the charge.

The office of Director of Public Prosecutions (DPP) intended to charge Morara with cyber harassment contrary to section 27 (1) and (2) of the Computer Misuse and Cybercrime Act No. 5 of 2018.

But senior counsel Martha Karua and lawyer Pareno Solonka stood down the charges and urged the court to reject the “defective” charge sheet.

The lawyers representing Morara argued that the information in the charge sheet did not disclose a charge of cyber harassment and did not also identify who is the complainant in the case.

The lawyers said particulars of the charge were speaking to defamation which is no longer a criminal offence but a civil wrong.

They said Morara was clearly not able to understand what he was responding, and the court has a discretion under section 39 of the criminal procedure code to reject the charge because the particulars of the offence are not supportive of the charge.

But DPP’s Dancun Ondimu said, “The particulars are sufficient to enable the accused person to respond to the charge and the court should not go into the merits and demerits of the case at this stage.”

Section (1) of the cybercrime Act provides that a person who, individually or with other persons, willfully communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons' property.

Section (2) states that it is also an offence if such communication detrimentally affects that person or is in whole or part, of an indecent or grossly offensive nature and affects the person.

Penalty for a person who commits an offence under subsection (1) is liable, on conviction, to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding ten years, or to both.

The particulars of the charges against Morara states that the activist on September 28, 2024, at unknown place within the republic of Kenya, jointly with others not before court, while using X account @MoraraKebasoSenior, knowingly and without lawful excuse, posted false information.

“The content whose information you knew to be false and calculated to tarnish and discredit the reputation of David Langat,” the charges read.

Mr Onyina, in his ruling, said the statement of charge does not however specify under which of the three paragraphs of section 27 of the said Act, the charge has been preferred – whether paragraph (a), (b) or (c) or some or all of them.

The magistrate said that the clarity in framing a charge is a requirement under section 144 of the criminal procedure code (CPC).

Mr Onyina said as per the law, every charge or information shall be sufficient if it contains a statement of the specific offence or offences with which the accused person is charged and states particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

“The particulars of the offence or the body of the charge sheet must therefore under the requirements capture all the elements of the offences charged and it is only then that the particulars disclose the information of the charge,” stated Mr Onyina.

“In this case, the particulars of the offence do not capture or outline the elements of the offence of cyber harassments as defined under section 27 sub (1) of the Computer Misuse and Cybercrime Act,” Mr Onyina.