Mukurweini MP John Kaguchia was on Tuesday arraigned before the Milimani Law Courts over alleged inciting remarks made during a political rally in Kieni, Nyeri County.
Appearing before Senior Principal Magistrate Teresia Nyangena, Kaguchia was read the charge of offensive conduct by the court clerk but did not respond after his lawyers mounted a spirited constitutional challenge against the charges.
His legal team objected to the manner in which the charges had been framed, arguing they violated several constitutional safeguards and should not proceed.
The courtroom was packed to capacity as a battery of lawyers appeared for the legislator alongside political allies who turned up in solidarity.
Among those present were Nyeri Senator John Methu, Nyeri Woman Representative Jane Njeri Maina and several elected leaders who followed the proceedings from the public gallery.
The defence argued that the charge sheet failed to meet the constitutional threshold set under Article 50(2) which guarantees every accused person the right to be informed of the charge with sufficient detail to answer it.
The charge before you does not disclose an offence under the law and purely an attempt by the state to breach the freedom of expression and limiting the opposition.
Lead defence counsel Kiragu Wathuta and Ndegwa Njiru told the court that the MP's constitutional rights had been violated from the time of his arrest.
The lawyers narrated that on the night of August 2, Kaguchia had appeared on Inooro FM's Kiririmbi programme where public affairs were being discussed between 7 pm. and 9 pm.
According to the lawyer, after the programme ended, staff at the Royal Media Services station allegedly informed the MP that about 30 Subaru vehicles carrying hooded individuals had surrounded the premises looking for him.
"Because of the wave of abductions in this country, I advised him to remain within the Royal Media Services premises. At about 5 a.m., I found him having spent the night on the station's couches waiting for daylight," lawyer told the court.
He said that at around 9 a.m., a senior officer who identified himself as a regional DCI commander arrived with uniformed officers and informed the MP that he was under arrest despite there being no summons or warrant issued against him.
"When we inquired why no summons had been issued as is the normal procedure, the investigating officer told us they were acting on instructions from above," the lawuer submitted.
The lawyer further claimed officers initially indicated Kaguchia would be taken to Kilimani before driving him instead to DCI headquarters, where he said advocates were denied access to their client.
"They told us no counsel would be allowed into the DCI premises. Lawyers were locked out and denied an opportunity to consult with the accused," he said.
According to the defence, lawyers later moved to court and obtained orders from Kiambu High Court granting Kaguchia police bail of Sh100,000.
However, they alleged officers at Kamukunji Police Station refused to process the release despite the cash bail being available.
The lawyer told the court that the Officer Commanding Station allegedly declined to accept the money, saying he had received instructions that the legislator could not be released from the station and should instead deposit the cash bail at Central Police Station.
"The accused is not before this court because of any crime he committed. He is here to demonstrate to the country that it is now a crime to oppose the government," he argued.
Lawyer Wathuta also informed the court that Justice Gregory Mutai had on Tuesday morning in Milimani High Court Human Rights Petition No. E517 of 2026 granted the MP a bond of Sh500,000 and directed police to facilitate his access to legal counsel.
Lawyer Ndegwa Njiru argued that Kaguchia could not be required to plead before first receiving legal advice, citing Article 49(1)(c) of the Constitution, which guarantees every arrested person the right to communicate with and be represented by an advocate.
Njiru further challenged the jurisdiction of the Milimani court, arguing that the alleged offence was said to have occurred in Kieni, Nyeri County, and should therefore be prosecuted before a court with territorial jurisdiction over the alleged incident.
He also argued that the charge under Section 94(1) of the Penal Code was defective because it did not disclose who had allegedly been threatened, abused or insulted.
"The charge sheet merely refers to words allegedly uttered by the accused but fails to demonstrate that they were made in a public place or that they amounted to threatening, abusive or insulting words as required by law," Njiru submitted.
He also questioned the accuracy of the translated charge sheet, telling the court he understood Kikuyu and had noticed discrepancies between the original alleged utterances and the English translation.
Njiru argued that the translation distorted the alleged remarks, particularly the reference to the word "Kasongo", and maintained that the inconsistencies prejudiced the accused's ability to understand the charge.
He further submitted that the offence under Section 94 of the Penal Code is a misdemeanour punishable by a maximum sentence of six months imprisonment or a fine not exceeding Sh5,000.
Njiru argued that under Article 49(2) of the Constitution, Kaguchia ought not to have remained in custody for two nights over such an offence.
The defence also urged the court to order the release of the MP's Samsung A33 mobile phone, arguing that it had no connection to the alleged offence.
The hearing on the preliminary objections is still ongoing before Milimani Law Courts
