The High Court Friday struck down sections of the Computer Misuse and Cybercrimes (Amendment) Act, 2025, that allowed a state committee to order the blocking of websites and online applications without first obtaining court approval.
Justice Patricia Mande Nyaundi declared Section 6(1)(j)(a) unconstitutional, saying it gave excessive powers to the National Computer and Cybercrimes Coordination Committee and infringed on constitutional protections on freedom of expression, media freedom and freedom of religion.
The impugned provision had empowered the committee to direct internet service providers to disable access to websites and applications suspected of hosting content linked to terrorism, violent extremism, child sexual exploitation and other unlawful activities.
However, the judge held that the law effectively handed an administrative body the authority to determine whether online content was offensive and to remove it without judicial oversight.
Nyaundi observed that the provision amounted to prior restraint, which is considered one of the most severe forms of censorship, and lacked sufficient procedural safeguards and evidentiary thresholds.
The court rejected arguments by the State that judicial supervision could be implied in the law, noting that Parliament had created a separate enforcement mechanism that expressly involved the courts, indicating that the disputed provision was intended to operate independently.
She said the State failed to demonstrate that limiting constitutional rights through the provision met the threshold set out under Article 24 of the Constitution, which requires restrictions on fundamental freedoms to be reasonable, clear and justifiable in a democratic society.
The court further warned that granting the committee powers to block websites without prior judicial determination could lead to arbitrary enforcement and create a chilling effect on online speech, forcing individuals and digital platforms to censor themselves out of fear of sanctions.
In the same judgement, Justice Mande also invalidated Section 27(1)(b) of the amended law, which criminalised communication considered likely to cause another person to commit suicide.
The judge ruled that the provision was vague and overly broad because it failed to clearly define the conduct that would amount to a criminal offence and was based on speculative standards.
She held that imposing criminal liability on the basis of communication merely “likely” to result in suicide offended the constitutional principle of legality because it relied on subjective and uncertain criteria.
Despite declaring the two sections unconstitutional, the court dismissed challenges to the manner in which Parliament enacted the amendments.
She found that the National Assembly had provided adequate opportunities for public participation before passing the Bill and further ruled that the Senate’s involvement was not necessary because the legislation did not concern county governments.
The consolidated petitions therefore succeeded only in part, with the court nullifying the provisions on website blocking and communication likely to cause another person to commit suicide, while upholding the rest of the amendments to the cybercrimes law.
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