David Oaga Mokaya, a 24-year-old Moi University student, is a free man after a Nairobi court on Thursday acquitted him of charges stemming from a controversial social media post depicting President William Ruto at a funeral procession for lack of evidence.
Mokaya had been charged with publishing a photo of President Ruto in ceremonial uniform at a funeral procession, captioned: “President William Ruto leaving Lee Funeral Home with a casket covered with a Kenyan flag, escorted by a military officer.”
The post was allegedly published on his X account on November 13, 2024.
In a decision rendered at the Milimani Principal Magistrate Carolyne Nyaguthii Mugo cleared Mokaya of all criminal charges after finding that the prosecution had not only failed to establish a prima facie case but had also obtained key evidence in flagrant violation of his constitutional rights.
Nyaguthii ruled that the prosecution failed to link Mokaya to the publication and had relied on unlawfully obtained evidence, a combination she said fatally weakened the State’s case.
“Having excluded the unlawfully obtained evidence and finding no independent proof linking the accused person to the impugned publication, this court finds that the prosecution has failed to discharge the burden of proof beyond any reasonable doubt. Accordingly, the accused person is hereby acquitted,” Magistrate Mugo ruled.
The magistrate faulted the State for illegally acquiring evidence, including Safaricom mobile data, noting that the manner in which it was obtained violated established legal procedures and undermined the integrity of the investigation.
“The investigators disregarded the constitutional safeguards since the post in question involved the President of the Republic of Kenya,” Magistrate Nyaguthii stated pointedly in her ruling.
The court noted that Mokaya’s electronic gadgets were seized and examined forensically without a court order, a violation the magistrate said could not be overlooked.
“Even if the court were to accept the prosecution evidence, the accused person’s gadgets were seized and examined forensically without any court order,” the court observed.
Magistrate Nyaguthii invoked Articles 27 and 244 of the Constitution, which guarantee equal protection of the law and require the National Police Service to respect human rights in all its operations.
She was unequivocal that the President’s involvement in the subject matter of an alleged offence does not create a constitutional exception for investigators.
The court emphasised that a publication concerning the President does not suspend constitutional safeguards or justify investigative shortcuts.
It further warned that the criminal justice process must never be weaponised for expediency merely because a case is politically sensitive or involves a high-ranking public official.
The magistrate found that investigators bypassed mandatory legal safeguards due to the perceived gravity of the post.
On the question of criminal liability, the court drew a clear distinction between the existence of allegedly offensive online content and the responsibility for publishing it.
While acknowledging that questionable material may have appeared online, Nyaguthii stressed that liability under Section 22 attaches only to the actual publisher.
“In this case, the prosecution failed to bridge the evidentiary gap between the existence of the publication and the responsibility of the accused person,” she added.
With the exclusion of the contested evidence and no independent proof linking Mokaya to the social media account in question, the court consequently ruled that the prosecution’s case could not stand and acquitted him.
