Why Court quashed sections of the Cybercrime Act, why these are no longer offences

The Court of Appeal in Nairobi delivered a landmark ruling on March 6, 2026, declaring Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018, unconstitutional.

The three-judge bench, comprising Justices Patrick Kiage, Aggrey Muchelule, and Weldon Korir, found that these provisions were too vague and posed a significant threat to the freedom of expression and media freedom guaranteed by the Constitution of Kenya, 2010.

For years, these specific sections served as the primary tools for the Directorate of Criminal Investigations (DCI) to arrest social media users, bloggers, and journalists.

By striking them out, the court has ensured that publishing information the state deems 'false' or 'misleading' is no longer a criminal offence under this law.

Section 22 of the Act previously criminalised the intentional publication of false, misleading, or fictitious data with the intent that it be considered authentic.

Conviction carried a fine not exceeding Sh5 million or a prison term of up to two years.

Section 23 was even broader, targeting the publication of false information likely to cause panic, chaos, or violence, or to damage the reputation of another person.

The penalty for this was a fine of up to Sh5 million or imprisonment for ten years.

The judges described these sections as 'unguided missiles' that could easily net innocent citizens, noting that the language used was not precise enough to define a crime.

According to the bench, in a democratic society, a law that limits a fundamental right must be clear so that citizens know exactly what is forbidden.

The court ruled that Sections 22 and 23 failed this test of clarity.

The ruling was the result of a long-running legal battle spearheaded by the Bloggers Association of Kenya (BAKE).

The petitioners (BAKE) argued that the law was being weaponised by powerful individuals to silence dissent and investigative reporting.

In their petition, they pointed out that what one person considers 'false' might be another person’s opinion or satire.

The Court of Appeal agreed, saying the provisions risked criminalising normal journalistic errors, satire and personal opinions.

The judges noted that the threat to innocent citizens trumped the government’s stated aim of stopping 'fake news.'

They also pointed out that other laws, including the National Cohesion and Integration Act, 2008, already offer sufficient legal frameworks to deal with harmful speech without the broad and punitive reach of the contested cybercrime sections.

This decision offers a substantial layer of protection against arbitrary arrest for the typical Kenyan social media user.

In the past, a police raid and a protracted legal battle could result from a contentious post about a public figure or a breaking news update that turned out to be false.

The 'chilling effect' that prevented people from speaking truth to power out of concern that they would be accused of spreading lies has significantly decreased.

However, the ruling does not grant absolute license to post anything online.

The court left other parts of the Computer Misuse and Cybercrimes Act intact.

Offences such as cyber harassment, child pornography, and identity theft remain active.

Specifically, Section 27, which deals with 'cyber harassment,' was upheld because the court found its definitions of 'indecent' or 'grossly offensive' communication to be sufficiently clear.

Furthermore, investigative powers that allow the police to seek warrants for searching digital data and seizing devices remain in force.

While the 'fake news' charges are gone, the government still possesses the legal means to investigate more direct digital crimes.