Former State House Digital director Dennis Itumbi Monday urged a Nairobi court to acquit him of criminal charges over the fake letter alleging a plot to assassinate Deputy President William Ruto.
In his submission, Itumbi, through lawyer Katwa Kigen, wants Milimani chief magistrate Martha Mutuku to find that he has no case to answer and acquit him of three charges of making false documents, publishing false documents and reprogramming a phone for lack of evidence.
"That the prosecution has not made out a case which the court can be interested in his defence," lawyer Katwa says.
He argues the charge of making a false document under Section 66 of the Penal Code is unconstitutional following the High Court decision in the case of blogger Cyprian Nyakundi this year.
Itumbi avers that deletion of messages does not amount to reprogramming a phone as alleged in court by the state.
"No credible, consistent and viable evidence and exhibits have been presented to assist, make a sufficient case for Itumbi to answer, "Katwa informed the court.
In the case, the prosecution, through Anderson Gikunda, called eight witnesses to prove the charges against Itumbi and his co-accused blogger Samuel Gateri.
Further, Katwa argued that the forensic report that was supposed to prove, demonstrate and establish the three charges, does not allege the accused committed any of the alleged crimes.
Katwa argued that no search warrant and seizure was obtained before the phones and documents were taken from his client.
"The prosecution did not obtain a search warrant to seize the accused's Samsung and Oppo. This renders the exhibits, which are the foundation of the case, illegally obtained," Katwa added.
The prosecution wants Itumbi and Gateri put on their defence saying they have proved the charges against the two beyond any reasonable doubt.
Witnesses who testified claimed that police investigations established the post, which was circulated on social media, was sent from Gateri’s cell phone number.
Itumbi and Gateri are charged with publishing a false statement, contrary to Section 66(1) of the Penal Code.
They have since denied that on or before June 20, 2019, at an unknown place, they published a letter dated May 30, 2018, with the intent to cause anxiety to the general public.
Itumbi was accused of posting the letter in a WhatsApp group of the Tanga tanga team allied to the DP.
Itumbi is separately charged with making a false document. He is indicted with making a letter dated May 30, 2019, purporting it to be a genuine letter written by a Cabinet Secretary.
The third charge against Itumbi is that of re-programming of a mobile phone contrary to Section 84(G) of the Kenya Information and Communication Act.
The court will make its ruling on whether the two have a case to answer on September 15.
-Edited by SKanyara
