Former State House Director of Digital Communication Dennis Itumbi will know his fate on September 25 in a case in which he is charged with making a false document alleging a plot to assassinate Deputy President William Ruto.
Milimani chief magistrate Martha Mutuku will decide whether Mr Itumbi and political strategist Samuel Gateri Wanjiru will be put on defence.
The charge sheet states that on or before June 20, 2019 at an unknown place, Mr Itumbi and Mr Gateri published a letter dated May 30, 2019 with intent to cause anxiety to the general public.
Mr Itumbi is separately charged with publishing the same letter on June 20, 2018, knowing it was not genuine.
He faces another count of re-programming a mobile phone contrary to Section 84 of the Kenya Information and Communications Act. Mr Itumbi is accused of interfering with the operations of his mobile yet he is not its manufacturer.
State prosecutor Anderson Gikunda Monday urged Ms Mutuku to put the accused on their defence, saying he has presented tangible evidence to warrant this.
“I will rely on the evidence which is on record to impress upon this court to put the accused on their defence,” Mr Gikunda said.
In their arguments, defence lawyers Katwa Kigen and Georgiadis Majimbo urged the magistrate to acquit the two under Section 210 of the Penal Code, saying the prosecution did not give evidence to warrant their placement on defence.
The lawyers further told Ms Mutuku that the section under which Mr Itumbi and Mr Gateri are charged has been declared unconstitutional by the High Court.
Mr Kigen, for Mr itumbi, also told the magistrate that the prosecution has failed to meet the legal threshold to prove the case against the accused.
The magistrate heard that the letter which alleged the assassination plot was not traced to Mr Gateri’s Facebook but was circulated in a WhatsApp group f the Tangatanga political faction, of politicians in the ruling Jubilee Party.
The lawyer asked the court to find Mr Itumbi has no case to answer in all the three counts against him.
“Since the charges are framed on Section 66 of the Penal Code, which has been declared unconstitutional, they are therefore naked without supporting exhibits and no evidence upon which the court can decide to invite a case to answer,” he said, adding witnesses admitted the forensic report on the alleged letter was inaccurate.
Mr Majimbo also sought the accused’s acquittal, saying “there is no proper case before the court”.
He further noted that Mr Gateri had been listed as a witness against Mr Itumbi but was later converted into an accused person.
Police claimed the alleged offending letter emanated from his phone but that he deleted the message after posting it on social media.
Ms Mutuku will issue her ruling on September 15 whether or not the prosecution will have presented evidence to warrant placing the accused on their defence.
