The High Court on Thursday morning ruled that the Directorate of Criminal Investigations (DCI) entrapped controversial blogger Cyprian Nyakundi in the Ksh. 17.5 million extortion case.
In dismissing the case, Justice Antony Mrima said the evidence was illegally obtained and is inadmissible.
Nyakundi was in January charged alongside Emmanuel Nyamweya with attempting to extort Ksh. 17.5 million from Victoria Commercial bank in order to pull down libellous stories they had published on their website.
They had allegedly received a down payment of Ksh. 1 million from the victim by the time they were arrested by the detectives in connection with alleged extortion, blackmail and false accusations.
The two who appeared before Milimani Senior Principal Magistrate Kennedy Cheruiyot denied the charges.
Detectives laid an ambush and had the CEO one Yogesh Pattni “deliver the cash contained in a small black shopping bag to Nyakundi and Emmanuel on the 3rd Floor of Westgate Shopping Mall before they were arrested”.
The ruling raised various violations of the constitution. Justice Mrima pointed out that entrapment by the DCI violates the Petitioners right not to self-incriminate under Article 50(2).
Further, he noted that the DCI’s conduct in the case violates Article 244, which binds the DCI to comply with constitutional standards of human rights and fundamental freedoms: while training his officers to the highest possible standards of competence and integrity and to respect human rights and fundamental freedoms and dignity.
“Petitioners contend that their prosecution on the basis of illegally obtained evidence violates the right to fair trial under Article 50(4) which forbids entrapment” read the part of the ruling.
The Petitioners aver that contrary to Article 50(4) the DCI and their agents set them up and provided them with an opportunity to commit the offence of “extortion” without a reasonable suspicion that they were already engaged in criminal activity or even following a bona fide inquiry.
Justice Mrima observed that in the alternative, even if the detectives had reasonable suspicion or were acting in the course of a bona fide inquiry, the DCI went beyond providing an opportunity and induced the commission of an offence.
“Accordingly, the DCI instigated the offence and there is nothing to suggest that it would have been committed without the DCI’s intervention. That intervention by the DCI and its use in the impugned criminal proceedings means that, right from the outset, the Petitioners were definitively deprived of a fair trial under Article 50(2)” said the judge.