The High Court has declined to issue interim orders preventing the prosecution of Manyatta MP John Gitonga Mwaniki Mukunji and his co-petitioners, blocking their attempt to stall charges related to alleged misuse of the Prevention of Terrorism Act (POTA).
Represented by Lawyer Elijah Mwangi, the trio, including journalist James Ikuwa Mbochi and boda boda rider Stanley Mbuthia Wanjiru, had hoped the court would bar their prosecution and protect their political and personal freedoms while their petition was pending.
Mwangi argued the charges, brought under the contentious POTA framework, were inconsistent with the legislation’s purpose and appeared motivated by an effort to stifle political dissent and suppress freedom of expression.
He proposed that the court issue conservatory orders and
empanelment to prohibit prosecutors from proceeding until after the hearing of
the petition.
“We will be seeking conservatory orders preventing charging of the petitioners because charges are themselves at cross purposes with the actual purpose of the Prevention of terrorism act," the petitioners told the court through their lawyer.
Opposing the request, Lawyer Patrick Barasa, holding brief and acting for the first and second respondents, cautioned that the DPP and state agencies had not even filed a formal charge sheet.
Barasa emphasised that it was premature to issue such orders without clarity on which legislation the suspect actions fell under.
Similarly, Lawyer Maatwa for the DPP (third respondent) highlighted several procedural gaps, including incomplete disclosure of existing court cases and the fact that the investigation file had not yet been submitted to the DPP.
He argued there was no evidence of imminent arrest or threat to the petitioners’ liberties, making the request untimely and unwarranted.
The counsel asked for seven days to file a substantive response.
In a rejoinder, Mwangi insisted he had annexed documents showing efforts to detain the petitioners and charge them under POTA, affirming that the request was not premature but appropriate given the urgency.
He stressed that any delay in granting protections risked undermining the rights of his clients under constitutional guarantees of association and political participation.
Justice Bahati Mwamuye in Wednesday's court session, listened carefully to both sides and ultimately declined to grant the prayers, which sought the protective conservatory measures.
“I have looked at Prayer 2… it is something I will not be granting today. However, if circumstances change, the applicants are at liberty to file, if need be,” the judge ruled.
The court gave parties until September 11, 2025, to present
further submissions in the application filed on July 21, through a session
focused on highlighting key legal submissions.
Through the petition, the MP and two others argue that the allegations against them represent a broader pattern of misapplying anti-terror laws in circumstances unrelated to terrorism.
They seek various declarations, including that the State’s actions were unconstitutional and violated rights to privacy, freedom of expression, due process, and protection from arbitrary detention.
The petitioners further claim they have incurred legal costs due to their alleged unlawful arrest and prosecution and are seeking damages.
