NAIROBI, Kenya — The Court of Appeal of Kenya has declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act unconstitutional, ruling that the provisions were overly broad and posed a risk of criminalising innocent citizens.
In a judgment delivered by a three-judge bench comprising Weldon Kipyegon Korir, Aggrey Muchelule, and Patrick Kiage, the appellate court said the wording of the two sections lacked clarity and could easily be misused to restrict lawful expression.
The judges found that the provisions failed to meet constitutional standards required when limiting fundamental rights, particularly freedom of expression.
“Our assessment of Sections 22 and 23 of the Act is that they are so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens,” the bench ruled.
The case had been brought by the Bloggers Association of Kenya, which argued that the sections imposed restrictions on speech that did not meet the threshold established under the Constitution of Kenya 2010.
Under Article 24 of the Constitution of Kenya, any limitation on a constitutional right must be reasonable, justifiable, and proportionate in an open and democratic society.
Section 22 of the Act criminalised the intentional publication of false, misleading, or fictitious information presented as authentic. Offenders faced a fine of up to Sh5 million or imprisonment for up to two years, or both.
Section 23 went further, criminalising the publication of false information in print, broadcast, or through a computer system that results in panic, chaos, violence, or reputational harm. The provision carried a penalty of up to Sh5 million in fines or imprisonment for up to 10 years.
However, the appellate judges ruled that the broad wording of the two sections could criminalise individuals who unknowingly share inaccurate information online, particularly on social media platforms.
The court noted that while freedom of expression under Article 33 of the Constitution of Kenya can be limited in certain circumstances, such limitations must be clearly defined and narrowly tailored.
The Constitution allows restrictions on speech where the publication of information is likely to propagate war, incite violence, amount to hate speech, or constitute advocacy of hatred.
The ruling comes amid ongoing debate over cyber regulation in Kenya. In 2024, William Ruto signed the Computer Misuse and Cybercrimes (Amendment) Act 2024 into law following widespread protests led by young Kenyans over governance and economic issues.
Earlier, the High Court of Kenya had suspended the implementation of Sections 27(1)(b), (c) and (2) of the amended law, which relate to cyber harassment and the publication of false information.
Civil society organisations, including the Kenya Human Rights Commission and activist Reuben Kigame, had challenged the provisions, arguing that they were vague and could be used to suppress online speech.
The government, however, had defended the amendments, saying the strengthened cybercrime framework was necessary to combat terrorism, child exploitation, SIM-swap fraud, and rising cybercrime targeting financial institutions.
The Court of Appeal ruling now adds a significant legal precedent in Kenya’s ongoing struggle to balance digital regulation with constitutional protections for freedom of expression.
