The High Court has struck down a section of the Penal Code that criminalized “creating disturbance in a manner likely to cause a breach of peace,” ruling it unconstitutional and unenforceable.
In his ruling, Justice Bahati Mwamuye found that Section 95(1)(b) of the Penal Code violates the Constitution because it is overly broad and vague. The judge noted that the provision’s wording lacks clarity and precision, leaving it open to misuse and arbitrary enforcement.
“The provision is inconsistent with the Constitution and is hereby declared unconstitutional, null and void,” Justice Mwamuye stated.
The court ordered police and other law enforcement agencies to immediately stop enforcing the offense, which had been classified as a misdemeanor punishable by up to six months in jail.
The Law Society of Kenya (LSK) brought the case, arguing that the provision is a relic of colonial-era legislation that unfairly restricted freedom of expression. LSK highlighted that the law had frequently been used to intimidate and silence critics, activists, and ordinary citizens.
In its submissions, the society pointed out that the offense’s undefined and sweeping nature made it impossible for people to know what behavior could constitute a crime, conflicting with constitutional standards that require laws to be clear and specific.
Justice Mwamuye agreed, stressing that criminal laws must be drafted with enough precision to safeguard fundamental rights and freedoms. He noted that vague statutes carry the risk of being weaponized against individuals exercising legitimate expression.
The ruling also brought relief to activist Morara Kebaso, whose prosecution under the disputed section was dismissed.
Kebaso had been arrested on October 8 last year and detained at Lang’ata Police Station after monitoring government development projects. Authorities had intended to charge him under the now-invalidated provision.
By striking down the section and ending Kebaso’s case, the court reinforced constitutional protections for free speech and set a precedent limiting the use of ambiguous public order offenses.
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