Naivasha Member of Parliament Jayne Kihara has been granted temporary relief from criminal prosecution after the High Court in Nairobi issued a conservatory order suspending her case. The decision, delivered by Justice Chacha Mwita on Monday, halts proceedings in Milimani Criminal Case No. E382 of 2025 until Tuesday, September 16, 2025, pending the determination of Kihara’s constitutional petition challenging the legality of the charges against her.
Kihara faces charges under Section 94(1) of the Penal Code for allegedly engaging in offensive conduct likely to provoke a breach of peace during a public gathering in Nairobi on July 8 2025. The charges stem from remarks she allegedly made, which the Director of Public Prosecutions (DPP) claims were intended to incite violence.
The MP’s legal team, led by Senior Counsel Kalonzo Musyoka and advocate Ndegwa Njiru, has argued that the prosecution is politically motivated and that the charges infringe on her constitutional right to freedom of expression under Article 33.
In a ruling last week, Milimani Senior Principal Magistrate Benmark Ekhubi upheld the DPP’s decision, stating, “I find the requirements of a properly drafted charge sheet have been mounted by the State. The MP will be able to fathom, adequately discern, and prepare for her defence.”
However, Kihara’s lawyers contested the validity of Section 94(1), calling it outdated and arguing that it fails to define a clear offence. They sought a 14-day deferment to file a constitutional petition, a request initially opposed by the prosecution, who argued that plea-taking would not bar Kihara from seeking constitutional redress.
Justice Mwita’s order suspends the plea-taking originally scheduled for August 7 2025. He directed the DPP to respond to Kihara’s petition within seven days and instructed all parties, including the MP and the Directorate of Criminal Investigations (DCI), to file written submissions not exceeding 10 pages before the September hearing.
Kihara, a vocal ally of former Deputy President Rigathi Gachagua, has maintained her innocence, describing the charges as a “political witch-hunt.”
Speaking outside the Milimani Law Courts, she stated, “This is a political prosecution. I do not know who I incited, as I was addressing the press. If talking on important issues is what is termed incitement, then I have no alternative but to continue speaking on such issues.”
The prosecution, led by State Prosecutor Victor Owiti, countered that freedom of expression does not extend to hate speech or incitement to violence, asserting that the charge sheet was properly constituted and that Section 94(1) remains enforceable unless declared unconstitutional.
Kihara’s legal troubles began with her arrest on Thursday, July 17, 2025, at her Naivasha home, following her refusal to honour the DCI summons over earlier allegations of undermining a public officer under Section 132 of the Penal Code, a provision her legal team noted was declared unconstitutional in 2016. She was released on a KSh 50,000 personal bond on Friday, July 18, 2025.
The case has sparked public debate, with some of Kihara’s supporters disrupting court proceedings with chants, prompting Magistrate Ekhubi to warn against turning courtrooms into “political arenas.” The outcome of the constitutional petition could set a precedent for balancing freedom of expression with legal accountability in Kenya’s politically charged environment.