The Court of Appeal has declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act unconstitutional, ruling that the provisions are impermissibly vague, overbroad and disproportionate in their interference with freedom of expression.
In a unanimous judgment delivered on March 5, 2026, the three-judge bench—Justices Roselyn Nambuye, Sankale ole Kantai and George Dulu—found that the sections fail the constitutional test of legality, necessity and proportionality required under Article 24 of the Constitution when limiting fundamental rights.
Section 22 criminalises the publication of “false, misleading or fictitious data” intended to cause panic, chaos or violence to the public, or to diminish public confidence in the government or any public institution. Section 23 penalises the intentional publication of data that is “offensive, indecent, obscene or menacing” with intent to cause apprehension or fear.
The court held that both provisions are “unguided missiles” — terms borrowed from earlier High Court reasoning — because they lack clear, objective standards for what constitutes “false”, “misleading”, “offensive” or “menacing” data. The judges noted that the sections do not require proof of actual harm or imminent danger, nor do they contain a public-interest or truth-defence carve-out, leaving ordinary citizens vulnerable to arbitrary prosecution for satire, criticism, opinion or even honest mistakes.
“These sections cast a chilling effect on free speech far beyond what is necessary in a democratic society,” Justice Nambuye wrote in the lead judgment. “A citizen who posts a critical opinion about a public official, shares a meme, or questions official statistics can be hauled before court simply because someone in authority finds the expression ‘offensive’ or ‘misleading’. That is not the rule of law; that is rule by discretion.”
The court emphasised that while the State has a legitimate interest in protecting public order and preventing harm through digital communication, restrictions must be narrowly tailored. Sections 22 and 23, the judges ruled, sweep too broadly and delegate excessive discretion to law-enforcement and prosecutorial authorities without sufficient safeguards against abuse.
The judgment arose from consolidated appeals filed by bloggers, journalists, digital-rights activists and ordinary citizens who had been charged or threatened under the sections since the Act came into force in 2018. Petitioners argued that the provisions had been weaponised to silence critics of government policy, particularly during debates over the Finance Bill, electoral processes and public-health measures.
One petitioner, a Nairobi-based content creator, told the court: “I live in fear every time I post. One person in authority can decide my tweet is ‘misleading’ and I end up in court. That is not freedom of expression; that is censorship by fear.”
The Court of Appeal upheld the core reasoning of the High Court (which had already struck down the sections in 2020 but whose decision was under appeal) and went further by permanently expunging the provisions from the statute. The declaration of unconstitutionality takes immediate effect, meaning no new charges can be brought under Sections 22 or 23, and all pending prosecutions relying solely on those sections must be terminated.
The Attorney General had defended the provisions, arguing they were necessary to combat disinformation, hate speech and incitement in the digital age. The court acknowledged the State’s concerns but ruled that narrower, more precise legislation could achieve the same objectives without endangering protected speech.
Reacting to the judgment, digital-rights organisation Article 19 Eastern Africa called it “a landmark victory for freedom of expression”. “The court has recognised that vague laws are the enemy of free speech,” the organisation stated. “Kenyans can now criticise, satirise and hold power to account online without the constant threat of prosecution under these draconian provisions.”
The Law Society of Kenya welcomed the ruling but urged Parliament to fill the gap with carefully drafted legislation that targets genuine harm—such as targeted harassment, incitement to violence or deliberate disinformation campaigns—while preserving robust protection for political speech and public-interest journalism.
Legal scholars predict the decision will force a rethinking of several other provisions in the Computer Misuse and Cybercrimes Act that have been criticised for similar vagueness, including sections on false publications and publication of false information.
The judgment is likely to be appealed to the Supreme Court by the State, but until any stay is granted or the apex court rules otherwise, Sections 22 and 23 no longer form part of Kenyan law.
For ordinary Kenyans, bloggers, journalists and social-media users, the ruling removes a significant legal shadow that had hung over online expression for nearly eight years. As one petitioner outside court put it: “We can finally breathe and speak freely again—within the bounds of the Constitution, not the whims of those in power.”
