Criminal lawyer Danstan Omari strongly defended the Director of Public Prosecutions (DPP), Renson Ingonga, following a public backlash over the recent court’s decision to discharge blogger Rose Njeri.

Njeri had been accused of cyber harassment and computer misuse crime

Speaking out after the ruling by Principal Magistrate Geoffrey Onsarigo, Omari decried what he termed as “misguided criticism” directed at the DPP.

He said the decision to charge Njeri was legal, constitutionally grounded, and within the scope of the DPP’s powers.

“The Office of the Director of Public Prosecutions is established under Article 157 of the Constitution. The DPP has exclusive powers to institute and undertake criminal proceedings before any court, and this authority is not subject to direction or control by any person or authority,” said Omari.

He argued that Article 157(10) of the Constitution does not require the DPP to get consent from any person before initiating criminal proceedings and is protected from external influence or interference.

“It is very perturbing to the members of the public to be mislead that the DPP does not understand the law and mandate of his office, the DPP has exercised his mandate judiciously in article 157(11) the DPP is supposed to hold any charges in a view to uphold the public interest and in a manner that protects the rule of law,” Omari argued.

“No evidence at all has been shown that DPP Renson Ingonga has overstepped his mandate or has gone beyond what it is required by law.”

Omari argues that Rose Njeri an IT guru, was charged under Section 16 of the Computer Misuse and Cybercrimes Act, 2018, which criminalizes the unauthorized interference with computer systems, programs, or data.

According to Omari, the law is valid, enforceable, and has not been declared unconstitutional by any competent court.

“I want to put it very straight there has been no challenge in any court of law of the cyber crime act,” argued Omari.

“What courts have been declared unconstitutional were sections of the Kenya Information and Communications Act (KICA), which are unrelated to this case.”

He says two judges;Justice Korir and lady Justice Wilfrida Okwany had previously declared sections 84 (g) and 66 of KICA unconstitutional, but alleged that those decisions do not extend to the Cybercrimes Act.

“That is why he (DPP) charged rose Njeri under section 16 of cyber crime act,” said Omari.

He further alleged that the Supreme Court had already upheld the legality of the Cybercrimes Act in a case where it was argued that the Act should have gone through the Senate.

The apex court held that there was no constitutional requirement for the Act to be tabled before the Senate.

“The cyber crime act has been challenged in the supreme court and in the decision where the seven judges when challenged about the cyber crime act was never taken to senate and therefore it be declared illegal and unconstitutional the supreme court upheld that there is no requirement for that act to be taken to the Senate and therefore that act is legal, it is constitutional,” argued Omari.

Omari also referenced a recent decision of the Court of Appeal in consolidated appeals E035 and E038 of 2023 by petitioners Nicodemus Ndunda Makau and Joseph Musyoka Mativo v Republic, where Justices Laibuta, Ochieng, and Ngeye Macharia upheld the validity and applicability of the Cybercrimes Act.

“This is a judgement of court of appeal dated April 11, 2025, As we say for now there is no provision of the cyber crime act that has been declared unconstitutional that has been declared illegal and therefore the decision by the director of public prosecution to charge rose Njeri pursuant to the cyber crime act is valid, lawful and therefore it is not true to put a headline that DPP is not performing his work,” said Omari.

While acknowledging the court’s ruling, Omari strongly disagreed with Magistrate Onsarigo’s decision to dismiss the charges against Njeri on the grounds that they were defective and did not disclose an offence.

“The magistrate must have overstepped his mandate.I don’t agree with the ruling of the magistrate’s court because the magistrate looked at the KICA those are the provisions that have been declared unconstitutional, said Omari.

“The learned magistrate cannot declare a law unconstitutional,that is the sole preserve of the High Court.”

According to him, magistrate Onsargo’s ruling does not quote the section or the judgement or the authority that has declared sections 16 of the cyber crime act illegal and unconstitutional.

Omari said that the DPP is preparing to move to the High Court on June 23, to seek a revision of the magistrate’s decision.

“Section 16 is in force to date and it will not only apply to Rose Njeri it will apply to all Kenyans until parliament repels it or high court declares it unconstitutional,” said Omari.

Omari argued that the DPP does not make laws instead it is the parliament

According to him, the DPP’s job is to apply exiting laws as they are.

“The removal of the DPP if anybody has a problem shall go before the Public service commission (PSC) pursuant to article 158 of the constitution for the removal of the DPP.”

While discharging Njeri, the court found that the charges which she was to plead to were defective hence her acquittal.

The magistrate further said that the court was guided by a Statute under the Constitution which states that every person has a right to a fair trial and the charges before him failed to disclose Njeri’s alleged offence.

“In light with the same statutes, i hereby refuse to admit the two counts of charges against the suspect. She is hereby discharged under Section 890(5) of the Constitution that requires disclosure of the offence,” the magistrate ruled.

In May, Njeri was released on a personal bond of Sh100,000 after being arraigned in court.

This is after her lawyers urged the court to dismiss the charges and release her on free bond.

The defence team led by Kalonzo Musyoka and Eric Theuri and former Supreme Court President David Maraga prayed the court to object to the plea taking against Njeri saying they do not understand how to respond to the charges.

In his submissions, former Law Society of Kenya LSK president Eric Theuri said that the alleged email that was used by the suspect was created by the Parliament to the members of the public for the memorandum in support or opposition to the finance bill 2025,

“Your honor we fail to understand how to respond to the charge since the email used originated from the government and that means any person who sent an email to the same is a victim,” Theuri submitted.

He told the court that the Njeri responded to the government as it was the bottom line when the Parliament created the email.

Theuri insisted that the Njeri used the email for the purpose it was created for to the contrary that she violated the constitution and they fail to understand how to advice the suspect either to plead guilty to the charges or not.

He urged the court to release her on personal bond and the gadgets which are unlawfully held be released to her while the Investigations against the offence continues.

Abna Mango told the magistrate that the constitutional rights of the suspect was breached considering she was arrested on Friday and denied police bail,

“The rights of the suspect was breached bestowed under Article 49 of the constitution,” Mango told the court.

In response, the prosecution team led by Victor Owiti objected to the plea by the defence claiming that there is no offence known by law as per the drafted charge sheet.

“Your honor the charge and the particulars of the offence is well stated and the plea taking can proceed,” Owiti said.

He urged the court to admit Section 89 (5) where the court’s jurisdiction is limited to determine the question of validity whether the offence and particulars are well stated or not.