The Court of Appeal will on February 27, 2026 deliver its judgment in a case challenging the constitutionality of key provisions of the Computer Misuse and Cybercrimes Act, 2018.
The matter was heard by a three-judge bench comprising Justices Patrick Kiage, Aggrey Muchelule, and Weldon Kipyegon Korir.
During the hearing, counsel for the appellants, bloggers Association of Kenya (BAKE) Mercy Mutemi, told the court that the High Court had erred by upholding several sections of the law that unjustifiably limit constitutional rights.
She said the Act was passed “as a panicked response” to the undeniable potential of the internet and it’s habit to amplify things.
Mutemi alleged that the act was not judiciously crafted, resulting in violations of rights and fundamental freedoms.
According to Mutemi, the petitioners are challenging 15 offences and a total of 26 provisions of the Act, which they argue fail the constitutional tests of legality, necessity, and proportionality under Article 24 of the Constitution.
She singled out the offence of publishing false information under Sections 22 and 23, arguing that it is vague, subjective, and has been systematically misused to silence government critics.
“Facts may also cause panic. That opens the door for this offence to be misused, and indeed has been misused over the last few years,” she submitted,
She argued that most prosecutions under the provision collapse but not before individuals are harassed, detained, or intimidated.
Mutemi further argued that the Act grants police excessive investigative powers, including the ability to conduct surveillance and obtain data with limited judicial oversight.
She compared some provisions to establishing a “Big Brother kind of state.”
On public participation, she told the court that while the original Bill targeted cybercrime, Parliament later inserted provisions criminalizing online speech after legislators complained about “fake news” and gossip.
She said the public never got an opportunity to give input on these new offences.
“This is a derogation of the initial purpose the public was informed, the public deserved a second chance to give their views on the content offences,” Mutemi told the court.
She also faulted Parliament for failing to observe the two-third gender rule when establishing the National Computer and Cybercrimes Coordination Committee, which currently has only two women out of 11 members.
“Parliament did not legislate properly, to avoid a situation where article 27 was violated,” the court was told.
Supporting the appeal, Kiprono and Ochiel Dudley for law society of Kenya (LSK) and Kenya union of journalists (KUJ) argued that the contested provisions introduce fresh limitations on freedom of expression not contemplated under Article 33 of the Constitution.
They said falsity alone is not a legitimate ground for restricting speech
“The high court changed the rules of the game by refusing to interact with article 24,” said Dudley.
However lawyer Paul Nyamodi for the Attorney General (AG) and Inspector General of Police (IG), Njoki Kingara, and Kuyoni defended the Act, arguing that it was necessary to protect national security, public order, and citizens from the harms of cybercrime.
They told the judges that the law had been in force for seven years, except for a brief suspension of certain sections, without any successful petition proving violation of rights.
They submitted that offenses such as fake news, criminal defamation, child pornography, cyber harassment, cyber-stalking, and wrongful distribution of intimate images were unique to the digital era and required statutory tools for enforcement.
They urged the court to consider that while individuals emphasize personal freedoms, the State has a duty to protect the wider public.
“It is a new activity, it is an activity that has been enabled by human beings because of the growth of technology,” Nyamodi submitted.
On criminal defamation, the judges questioned why civil remedies were not sufficient.
The State countered that criminal sanctions were necessary for swift deterrence, likening the approach to traffic offenses that carry both criminal and civil liability.
The respondents also dismissed claims of non-compliance with the two-thirds gender rule in the establishment of the National Computer and Cybercrimes Coordination Committee (NC4), arguing that membership is tied to existing public offices within the public services, whose appointments already undergo constitutional scrutiny.
They cautioned that requiring suspects to be notified of monitoring would compromise investigations.
“The appeal before you should be dismissed with costs,” said Nyamodi.
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