NAIROBI, Kenya — The High Court has declared Section 95(1)(b) of the Penal Code unconstitutional, striking down the offence of “creating a disturbance in a manner likely to cause a breach of peace” and directing police to immediately cease its enforcement.
In a landmark ruling delivered on February 12, 2026, Justice Bahati Mwamuye found the provision to be broad, vague, and incompatible with the Constitution, effectively abolishing a misdemeanour that carried a penalty of up to six months’ imprisonment.
“This declaration confirms that Section 95(1)(b) of the Penal Code is unconstitutional, null, and void,” the court affirmed.
The petition had been filed by the Law Society of Kenya (LSK), which argued that the provision was a colonial-era relic that infringed on Article 33 of the Constitution, which guarantees freedom of expression. The court agreed, holding that the law lacked clarity and created room for arbitrary arrests.
Justice Mwamuye observed that the phrase “likely to cause a breach of peace” was incapable of precise definition and could be subjectively applied, contrary to the constitutional requirement that criminal offences be clearly defined.
Effectively, the ruling bars police from arresting or charging individuals solely on the basis that their conduct is deemed likely to disturb public order, unless it falls under a separate, constitutionally compliant offence.
The decision also quashed criminal proceedings against activist Morara Kebaso, who had been arrested on October 8, 2025, and charged under the now-invalidated provision. Kebaso had been detained at Lang’ata Police Station after monitoring government projects and was informed that he was being charged with creating a disturbance likely to breach the peace.
With the law struck down, Kebaso’s case becomes the last prosecution under Section 95(1)(b).
The judgment comes against a backdrop of growing public scrutiny of police conduct. In recent weeks, viral videos have shown officers assaulting civilians before arresting them, fuelling debate over alleged over-policing and abuse of discretion.
Under Article 24 of the Constitution, any limitation of rights must be reasonable and justifiable in an open and democratic society. The court’s decision underscores that vague public order offences cannot override protected freedoms.
The directive to law enforcement agencies to cease enforcement takes immediate effect, requiring the National Police Service and prosecutors to review ongoing or pending cases based solely on the invalidated provision.
The ruling is widely viewed as a milestone in Kenya’s evolving constitutional jurisprudence, particularly in the area of civil liberties and police accountability.
(b) of Penal Code unconstitutional, halts arrests for ‘breach of peace’ and quashes Morara Kebaso charges.){kind=link}