By Janet Nyamwamu
The Milimani Law Courts cleared journalist David Nyakang’i of cybercrime charges, ruling the evidence presented didn’t prove he committed the alleged digital offences.
Delivering the ruling, Senior Principal Magistrate Ben Mark Ekhubi said the prosecution’s evidence did not sufficiently connect Nyakang’i to the digital publication and domain at the centre of the charges.
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Nyakang’i had been sued by a medical doctor over articles published on a digital domain.
The matter came before the court following the close of the prosecution’s case, with the defence arguing that the legal threshold to place the accused on defence had not been met.
Senior counsel Danstan Omari, appearing for Nyakang’i, told the court that the prosecution had not shown that the accused owned, controlled, or exclusively used the alleged digital domain or devices.
Omari noted that while some digital material had been marked for identification, it was never formally introduced as evidence.
“The evidence produced does not show that the accused had control of the domain. It was only marked for identification but never produced as evidence,” Omari said.
The defence also highlighted expert testimony from cybercrime specialists at the Communications Authority of Kenya, who concluded that the investigations were inconclusive and did not directly link the digital activity to Nyakang’i.
Omari added that the prosecution had failed to provide registration documents or forensic proof showing that the gadgets in question were under the accused’s control.
“A handset or laptop can be used by several users. The critical issue is to establish ownership and control, and that was not done in this case,” Omari argued.
Magistrate Ekhubi agreed, ruling that the prosecution had not met the prima facie threshold required under Kenyan law.
Consequently, Nyakang’i was acquitted under Section 210 of the Criminal Procedure Code, and the cash bail he had deposited was ordered to be refunded in full.
Under Kenyan law, an accused can only be placed on defence if the prosecution establishes a prima facie case—evidence which, if unchallenged, would warrant a conviction.
In cybercrime cases, this requires clear proof linking the accused to the digital devices, domains, or platforms alleged to have been used in the offence.
Where such proof is lacking, courts have consistently acquitted defendants at the close of the prosecution’s case.
