Embakasi East MP Babu Owino has threatened to sue the state for unlawful detention following the withdrawal of a subversion case against him by the DPP.
Babu was last year arrested and charged alongside self-styled ghetto president Calvin Gaucho and five other ODM party supporters, accused of conspiracy to commit chaos and engaging in subversive activities.
However, they were on Wednesday let off the hook after the Director of Public Prosecutions asked the criminal court to withdraw the charges.
The accused had been charged under section 77(1) and (3) of the Penal Code that creates the offence of subversion.
That section was in March declared unconstitutional by the High Court in Nakuru.
Justice Samwel Mohochi said section 77 (1) and (3) of the Penal Code was a colonial legacy that restricts the freedom of expression. He thus declared it unconstitutional, saying its enforcement against any member of the public is unconstitutional.
With that declaration in mind, the DPP sought to review the charges against Babu and his co-accused.
"The DPP having gone through the charges and a decision by a High Court judge who nullified section 77(1) of the Constitution under which the accused persons were charged, found that it was unconstitutional," prosecution counsel James Gachoka told the court.
Gachoka told Milimani chief magistrate Lucas Onyina that the DPP could not continue with the trial of the seven since it was unlawful.
The decision was welcomed by defence lawyers led by Danstan Omari and Dancun Okatch. The lawyers claimed the charges were political.
The magistrate allowed the application by the DPP.
"Having taken note of both the prosecution and the defence lawyers, I, therefore, allow the termination of the case under section 87 (a) in lieu of the fact that the section under which the seven were charged is unconstitutional by a higher jurisdiction," the magistrate ruled as the matter was marked closed.
Babu, who addressed reporters outside the court, said he would be moving to the High Court to seek damages.
"We will file a constitutional petition in which we will be seeking damages and the cost from the state. We were unfairly treated, detained beyond 24 hours without food and water," the MP said.
Babu was arrested at the Jomo Kenyatta International Airport in July last year at the height of countrywide anti-government protests that were called by the Azimio la Umoja coalition to protest new tax measures.
He was then driven to Wanguru police cells in Kirinyaga county where he was detained.
Babu's wife Fridah then claimed police had denied her access to her husband.
Babu on Wednesday said he suffered torture and that his rights were violated on trumped-up charges that were frivolous.
"First, we will be seeking damages which is in the form of money for compensation. We want this to be seen as a win for Kenyans that nobody will ever again be charged with subversion," he said.
His other co-accused persons were Tom Ong'udi, Michael Omondi, Pascal Ouma, Kevin Wambo and Willys Baraka.
