- Justice Esther Maina ordered for the release of Didacus Malowa from Industrial area prison, where he spend a night, pending hearing of his case for review.
- In their application, Tuko and Malowa faulted Nyutu for jailing the editor without being heard.
Image: FILE
A Tuko editor jailed for failing to publish an apology was released by the High Court on Wednesday.
Trial magistrate Eunice Nyutu had sentenced him to serve five days in jail for not publishing an apology on a misleading story relating to the NYS graft case.
Justice Esther Maina ordered for the release of Didacus Malowa from Industrial Area prison where he spend a night, pending hearing of his case for review.
In their application, Tuko and Malowa faulted Nyutu for jailing the editor without being heard.
They sought a revision of the orders issued by Nyutu last Monday.
The orders found Malowa to be in contempt of court and sentenced him to six months in jail or alternative Sh50,000 fine.
According to court papers, Nyutu summoned and sentenced Tuko the same day they appeared in court, in response to the summons, without being offered time to respond adequately.
Tuko argue they were sentenced yet they were not parties in the case.
However, journalists reporting court proceedings as they were are deemed of general public importance.
“The court failed to follow the laid down procedures and contravened on their constitutional rights under Article 47 and 50,” the court papers read.
It is their further argument that any further adverse orders of the lower court will open doors for defamation suits.
This, they say, is since retraction and apology are orders, which should be granted after hearing parties substantively on merit, never happened.
“Tuko shall stand prejudiced for being condemned, unheard and will be forced to incur a lot of money in compensation on a matter it was not given ample time to defend,” the court papers read.
It is further submitted that if the magistrate makes further adverse orders, the company stands to suffer irreparable loss that cannot be compensated by costs and their rights under the law.
Meanwhile, KBC chief editor Millicent Awour will appear in court to answer to contempt of court charges in relation to the same story that was done by Tuko.
The court adjourned the matter to Thursday after KBC lawyers led by Danstan Omari made an application to be supplied with proceedings of March 25, when the story was aired.
Omari said they needed to compare the proceedings and the story aired so that they can prepare their defence.
In the case, former PS Lilian Omollo is charged alongside Ex- NYS director general Richard Ndubai for an alleged conspiracy to commit a felony and misuse of office.
(Edited by Bilha Makokha)