Member of the County Assembly (MCA) for Korogocho Absalom Odhiambo was on Wednesday set free unconditionally by a Nairobi magistrate court.

While releasing him, trial magistrate Gilbert Shikwe ruled that Odhiambo had been apprehended and held by police using a law that no longer existed in the country.

The magistrate instead lambasted the police and the prosecution that, while seeking the court’s permission to hold the MCA for longer, they ignored changes made to the law.

“The application by the DPP and DCI had no legs to stand on as it is based on a non-existent law. I hereby dismiss the application and order the unconditional release of the MCA unless lawfully held,” ruled Magistra Shikwe.

He faulted Directorate of Criminal Investigations (DCI) and Inspector General of Police (IG) for failing to note the incitement to violence statute they used to seek the MCA’s detention had been expunged in January 2020.

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Shikwe informed Attorney General Justin Muturi, DCI boss Mohamed Amin and IG Japhet Koome, through the prosecution, that the statute was declared unconstitutional by the Appeal Court.


He further criticized the AG for failing to table in the National Assembly the changes to the law as then ordered by appeal court judges Jessie Lesiit, Luka Kimaru and John Mativo.

The prosecution did not show any indication it planned to challenge Odhiambo’s release, with the MCA vowing to sue the AG, DCI, IG and DPP for his illegal arrest and detention.

He was arrested on Monday and held at Central Police Station for two nights over claims of incitement to violence and disobedience of the law over his remarks on January 25, 2023.


In January 2020, Justices Lesiit, Kimaru and Mativo declared the incitement to violence law unconstitutional saying it shifts the legal and evidential burden of proof to the accused.

In their ruling, they said it was in conflict with Article 50 of the Constitution and offended the common law in that “it is always for the prosecution to prove the guilt of the accused and that the proof must be beyond any reasonable doubt.”

The Appellate Court judges then barred the DPP from charging former Machakos Senator Johnson Muthama with incitement to violence over remarks he made at a rally in 2015.