Court dismisses Senator Mburas request to access activists WhatsApp account

Nominated Senator Emma Mbura on Thursday suffered a blow after a Mombasa Law Court dismissed an application that had sought to compel activist Kalinga Mgandi to disclose his Personal Identification Number (PIN) of his phone to enable police to verify his WhatsApp account.

Kalinga is currently facing four charges on improper use of a licensed telecommunication system after he sensationally claimed to have had a secret love affair with the Senator through the social media.

Mombasa Principal Resident Magistrate Nicholas Njagi while dismissing the application by the state, said the application did not have merit and was brought to the court under irrelevant provisions of the constitution.

Immediately after the application was dismissed, Kalinga Mgandi and Senator Emma Mbura’s supporters exchanged words affecting court proceeding forcing police to intervene.

The magistrate noted that the court had a duty to protect the rights of an accused person and it was the duty of the court to adhere to article 50 of the constitution that called for a fair trial.

This comes about nine days after the High Court has declared Section 29B of the Kenya Information and Constitution Act unconstitutional.

The Section states that: “A person who by means of a licensed telecommunication system sends a message that he knows to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person, commits an offence and shall be liable on conviction to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding three months, or to both.”

According to Lady Justice Mumbi Ngugi, the provision contravenes Article 33 of the Constitution on freedom of expression.

“If the intention is to protect the right of others then there are laws that are applicable,” she said.

The ruling was made after a blogger Geoffrey Andare moved to court challenging the powers of police to prosecute him over claims of misuse of a licensed telecommunication device.

By Patrick Kanga.