The High Court has declared two key provisions of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 unconstitutional, dealing a significant blow to the State's power to unilaterally block websites and criminalise certain forms of online speech.
In a landmark judgment on Thursday, Justice Patricia Nyaundi struck down Section 6(1)(jA), which empowered the National Computer and Cybercrimes Coordination Committee to order websites or applications rendered inaccessible without prior court approval, and Section 27(1)(b), which criminalised communication likely to cause another person to commit suicide.
"The consolidated petitions partially succeed. Section 6(1)(jA) and Section 27(1)(b) of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 are declared unconstitutional," Justice Nyaundi ordered.
The judge held that the website-blocking provision unlawfully restricted constitutional freedoms by granting sweeping censorship powers to an administrative body without judicial oversight.
"The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds," Justice Nyaundi ruled.
She further warned that the provision invites arbitrary enforcement and provides a chilling effect on legitimate expression, compelling individuals and platforms to self-censor out of fear of sanction.
The court held that the state had failed to meet the threshold set by Article 24 of the Constitution for limiting rights, ruling that the section restricts the freedoms guaranteed under Article 32, 33 and 34 yet it does so in a manner that falls [outside] the strict confines of Article 24.
On Section 27(1)(b), Justice Nyaundi found that criminalising communication "likely to cause another person to commit suicide" created a vague and overly broad offence that failed to meet constitutional standards for criminal law.
"The impugned provision... introduces a speculative, indeterminate and wholly subjective basis for criminal liability," she ruled.
The judge added that the provision violated the constitutional principle of legality by failing to provide the clarity, precision and foreseeability required of criminal offences.
The court ruled the provision violated the principle of legality under Article 25(c) and 52(b), which demand clarity, precision and foreseeability in criminal laws.
However, the court rejected arguments that Parliament acted unconstitutionally by excluding the Senate from the legislative process, finding the amendments did not concern county governments.
It also held that the enactment process satisfied constitutional requirements on public participation.
The decision partially allows the consolidated constitutional petitions, leaving the rest of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 intact while invalidating the two impugned provisions with immediate effect.
The court ruled that several sections, including 3, 5, 16, 17, 22 and dozens of others carried over from the original Computer Misuse and Cybercrimes Act, were res judicata, having already been upheld by the Court of Appeal in the Bloggers Association case.
