NAIROBI, Kenya, Oct, 5 – The High Court has ordered the immediate release of Tuko News editor Didacus Malowa, days after he was sentenced for allegedly failing to comply with a court directive.
Malowa was sentenced to five days in jail. He was accused of publishing a misleading story on the Tuko News website about the National Youth Service (NYS) scandal.
The court, through Magistrate Eunice Nyutu had ordered the accused to retract the story and issue an apology.
On Wednesday, pending the hearing of the case, however, the accused was ordered to be released pending the hearing of a review Application.
Justice Esther Maina issued the temporary order.
Lawyer Moses Munoko argued that the magistrate who sentenced the accused was domiciled at the anti-corruption court and had allegedly exceeded her mandate and powers by sitting in a civil court.
Munoko further argued that the case sought to deliberate on the reputation of character that is civil and defamation in nature and that there are proper channels to address such cases.
“The Honourable Magistrate made adverse orders with far-reaching ramifications against the applicants who are not parties to the proceedings. The magistrate ceased to be an impartial arbiter and became an active participant in the case,” argued lawyer Munoko.
They further argued that the court orders were irregular since the applicants were not served with any charged or applications nor given the chance to file a proper response.
“That the entire proceedings and subsequent sentencing are an affront to the principle of natural justice amounting to shifting the proof to the applicant. The jurisdiction in criminal cases starts with a charge sheet and fair hearing with the accused being accorded time and resources for defence,” Tuko argued.
Initially, the accuser’s lawyer had sought the suspension of the sentence on grounds that the matter was at the high Court for review of the initial order of fining Malowa Sh50,000.
His lawyers said that requiring the editor to issue an apology was beyond his designated role and was the responsibility of the management of Tuko News.
Also, they cited that the online News platform was not a channel but a webhost.
Meanwhile, the Kenya Union of Journalists has since written a complaint to Chief Justice Martha Koome against Senior Principal Magistrate Eunice Nyutu’s conduct in jailing the editor.
Concerns have also been raised over the summoning of a Kenya Broadcasting Corporation (KBC) editor over the same matter.
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