By BOB WASWANI
March 10, 2026| The Court of Appeal has declared two key sections of the Computer Misuse and Cybercrimes Act, 2018 unconstitutional, ruling that they are too broad and risk ensnaring innocent citizens in a landmark judgment delivered on March 6, 2026.
In a partial victory for the Bloggers Association of Kenya (BAKE), a three-judge bench comprising Justices PO Kiage, AO Muchelule, and W Korir found that sections 22 and 23 of the Act—which criminalise false publication and publication of false information—fail to meet constitutional muster.
The appellate court, however, upheld the constitutionality of more than 20 other challenged provisions, dismissing the bulk of BAKE’s appeal against the High Court judgment delivered by Justice JA Makau on February 20, 2020.
“The appeal partially succeeds to the extent that we find sections 22 and 23 of the Act unconstitutional for being too broad to the extent that they are likely to net innocent persons,” the judges ruled.
BAKE had moved to the Court of Appeal aggrieved by the High Court’s decision dismissing its petition, which sought to declare several sections of the Act unconstitutional for allegedly violating rights to privacy, freedom of expression, and fair trial, among others.
The association raised 42 grounds of appeal, which the appellate court condensed into key questions including whether the impugned provisions violated the Constitution and whether they met the justification threshold under Article 24.
False information provisions struck down
Section 22 of the Act criminalises the intentional publication of false, misleading, or fictitious data with intent that it be acted upon as authentic, attracting a fine of up to Kshs 5 million or two years imprisonment, or both.
Section 23 makes it an offence to knowingly publish false information calculated to result in panic, chaos, or violence, or which is likely to discredit any person’s reputation, with a penalty of up to Kshs 5 million or ten years imprisonment.
In striking down these provisions, the Court of Appeal observed that they cast a wide net and posed a danger to innocent citizens who may forward information without knowledge of its falsity.
“These provisions are a danger to the social media warriors who are on sentinel duty day and night, forwarding information without even reading what they are forwarding,” the judges stated.
The court drew parallels to historical examples, noting that Galileo Galilei was tried for stating the truth in an era when his statements were deemed false. “Sections 22 and 23 cast a wide net despite history teaching us that what we may hold to be false today may turn out to be true tomorrow,” the judgment reads.
The appellate court further observed that the provisions risk criminalising satire, opinions, and journalistic inaccuracies, adding that the National Cohesion and Integration Act already criminalises what the provisions sought to address.
Provisions on child pornography, cyber harassment upheld
On other contested provisions, the court affirmed the constitutionality of sections targeting child pornography, cyber harassment, and cybersquatting.
Regarding section 24(1)(c) on pornography, the court held that the provision serves a legitimate aim by regulating the downloading, circulation, sale, and distribution of child pornographic material, helping prevent access by minors.
“The marginal note of the section reads ‘child pornography’ and marginal notes can be used to interpret statutory provisions,” the court stated, rejecting arguments that the provision could apply to adult pornography.
The court also upheld section 27 on cyber harassment, finding that Parliament’s objective was to protect against cyberspace harassment and that the appellant failed to demonstrate how it impinges freedom of expression.
On cybersquatting under section 28, the appellate court ruled that the Constitution mandates the State to protect intellectual property rights and that cybersquatting undermines trust in digital commerce.
“Cyberspace cannot be a law-free environment, a virtual jungle or wild west devoid of criminal sanctions essential to deter its abuse,” the judges observed.
Privacy safeguards sufficient
The court further found that sections 48, 50, 51, 52, and 53 of the Act—which grant investigative authorities powers including search and seizure, production orders, and real-time data collection—do not violate the right to privacy.
The judges noted that these provisions include judicial oversight mechanisms and that courts called upon to authorise such actions bear a heightened constitutional responsibility to ensure orders are specific, time-bound, and narrowly tailored.
“We find that the impugned provisions are amenable to a narrow and purposive construction that confines their operation to circumstances of demonstrated necessity, subjects them to strict judicial scrutiny, and requires a close nexus between the investigative measure and the alleged offence,” the court ruled.
Public participation challenge dismissed
The appellate court also dismissed claims that the Act was enacted in breach of public participation requirements, particularly regarding the introduction of section 23 during the Committee of the Whole House.
Citing the Supreme Court’s decision in Cabinet Secretary for the National Treasury and Planning & 4 Others vs. Okoiti & 52 Others, the Court of Appeal held that not every amendment made after public participation requires fresh public input.
“We find that the amendment introduced by section 23 was not substantive and did not require a fresh round of public participation,” the judges ruled.
Gender rule challenge premature
On the claim that section 5 of the Act violates the two-thirds gender principle under Article 27(8) by establishing a committee with exclusively male membership, the court found the challenge premature.
The judges noted that the committee had not been constituted at the time of the petition and that the provision allows for designation of representatives by various office holders.
“Section 5, as drafted, is therefore harmless and constitutional. It is only once the Committee is constituted that the issue raised by the appellant may come to life,” the court held.
Mens rea adequately provided
Addressing arguments that several provisions lacked clarity on the mental element required for offences, the court found that terms such as “intentionally,” “knowingly,” and “unlawfully and without authorisation” sufficiently denote mens rea.
“The words used in the Act satisfy well-established mens rea standards in criminal law and provide clear notice to the public of the mental element required for conviction,” the judges stated.
Court issues implementation guidelines
In a significant aspect of the judgment, the appellate court issued recommendations for implementing the Act, urging courts and State actors to be specific about offences when issuing interception orders, specify the period of interception, protect data from third parties, and provide for eventual erasure of digital evidence.
“Courts, in particular, must be alive and alert to the risk that the Act can be deployed for political purposes and must carefully scrutinise every application before granting any order,” the judges warned.
The court ordered each party to bear their own costs, noting that the matter was of public interest and the arguments advanced were important in the continuing construction of Kenya’s constitutional architecture.
The judgment partially allows BAKE’s appeal to the extent of sections 22 and 23, while dismissing all other grounds.