The Court of Appeal Declares Sections 22 and 23 of the Computer Misuse and Cybercrimes Act Unconstitutional
Introduction
The Court of Appeal on 6th March 2026 rendered a significant judgment in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR) Civil Appeal No. 197 of 2020, a decision that has become an important reference point in Kenya’s developing jurisprudence on digital rights, freedom of expression, and the constitutional limits of cybercrime legislation.
At the heart of the appeal lay a constitutional challenge to several provisions of the Computer Misuse and Cybercrimes Act, 2018, which had been enacted with the stated objective of combating cybercrime and regulating conduct in the digital space. The appellant, the Bloggers Association of Kenya, contended that a number of these provisions impermissibly infringed fundamental rights guaranteed under the Constitution of Kenya, 2010, particularly the freedom of expression.
The appeal arose from the judgment of the High Court in February 2020 which had upheld the constitutionality of the impugned provisions. Dissatisfied with that determination, the appellant moved to the Court of Appeal seeking a reconsideration of the constitutional validity of those provisions.
Background to the Appeal
The dispute traces its origins to Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR Constitutional Petition No. 206 of 2018, in which BAKE challenged various sections of the Computer Misuse and Cybercrimes Act shortly after its enactment. The petition asserted that certain provisions of the statute criminalised online speech in terms so broad and imprecise that they threatened legitimate expression and public discourse in the digital sphere.
The High Court, after considering the petition, declined to invalidate the contested provisions. It held that the impugned sections were a legitimate legislative attempt to regulate harmful conduct within cyberspace.
The appellant thereafter lodged an appeal before the Court of Appeal challenging that determination and inviting the Court to interrogate whether the impugned provisions met the constitutional standard for the limitation of fundamental rights.
A Preliminary Observation on Drafting Grounds of Appeal
Before turning to the substantive issues, the Court of Appeal took the opportunity to make an important observation regarding appellate practice. The appellant had presented forty-two grounds of appeal, a formulation which the Court considered unnecessarily prolix.
The Court reminded practitioners that the Court of Appeal Rules require that grounds of appeal be stated concisely and without argument. In particular, the Court stated that it “pays homage to Rule 88(1) of the Rules which requires that a memorandum of appeal set forth the grounds of appeal concisely and without argument.”
In light of that requirement, the Court proceeded to distil the numerous grounds advanced by the appellant into a smaller number of central questions for determination. This intervention underscores a practical lesson for appellate practitioners: grounds of appeal ought to identify specific errors of law or fact in clear and concise terms, leaving argumentation to the body of submissions rather than the memorandum itself.
The Constitutional Question
The central constitutional question before the Court concerned the validity of sections 22 and 23 of the Computer Misuse and Cybercrimes Act. These provisions created offences relating to the publication or dissemination of false, misleading, or fictitious information through a computer system where such publication was likely to cause panic, chaos, or violence.
The appellant argued that the provisions were framed in a language so vague and expansive that they effectively criminalised ordinary communication in the digital space. In particular, it was contended that the provisions lacked clear definitional boundaries and therefore exposed citizens to criminal liability for speech whose illegality could not reasonably be anticipated.
The respondents, on the other hand, maintained that the provisions were necessary legislative tools for addressing the increasing misuse of digital platforms to spread harmful or destabilising information.
Determination of the Court
Upon consideration of the arguments presented, the Court of Appeal reached the conclusion that sections 22 and 23 of the Computer Misuse and Cybercrimes Act were unconstitutional.
In the Court’s view, the provisions were impermissibly broad and vague. Their language was capable of capturing a wide range of conduct, including innocent or inadvertent dissemination of information. The Court observed that the provisions were so expansive in their reach that they resembled “unguided missiles”, liable to ensnare individuals who lacked any intention to cause harm.
The Court further noted that the provisions failed to adequately define key terms such as “false information”, “misleading information”, and circumstances likely to cause “panic” or “chaos”. In the absence of such precision, the law created an unacceptable level of uncertainty regarding what conduct would attract criminal sanction.
In the Court’s assessment, such uncertainty posed a direct threat to the constitutional protection of expression. Citizens, uncertain of the scope of criminal liability, might refrain from sharing information or participating in public discourse for fear of prosecution. The appellate court highlighted;
“…it necessary to recommend that in the implementation of the Act, courts and other State actors must always be specific about the offence for which an interception order or any other order is sought; specify the period of interception;…”
The Court therefore held that the provisions did not satisfy the constitutional test under Article 24 of the Constitution for the limitation of fundamental rights. The restrictions imposed by the provisions were neither sufficiently clear nor narrowly tailored to achieve their intended objective.
Other Provisions of the Act
While invalidating sections 22 and 23, the Court did not disturb the entirety of the statute. Other provisions relating to cybercrime offences and investigative powers were upheld, subject to the requirement that their implementation must remain consistent with constitutional safeguards, particularly those relating to privacy and judicial oversight. Although the Court of Appeal upheld the constitutionality of some provisions in the Bake decision, it shifted the responsibility for safeguarding constitutional rights to the judiciary and reminded the courts to take this role seriously by stating;
“Although we find nothing unconstitutional with regard to section 48, courts must act with circumspection while exercising the powers therein. Overly broad or disproportionate use of the powers therein can easily violate constitutional rights. Fortunately, the High Court retains the authority to quash such actions should it deem that they contravene Articles 31 and 50 of the Constitution…………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.”
Significance of the Decision
The decision represents a significant development in Kenya’s constitutional jurisprudence on digital rights and online expression. It reaffirms the principle that legislation regulating conduct within cyberspace must meet the same constitutional standards of precision, proportionality, and clarity that apply to all laws limiting fundamental rights.
Equally important is the Court’s reminder regarding the proper drafting of memoranda of appeal. By invoking Rule 88(1) of the Court of Appeal Rules and reducing the appellant’s forty-two grounds to a concise set of questions, the Court underscored the importance of disciplined appellate drafting.
The judgment therefore serves not only as a landmark ruling on cybercrime legislation but also as a practical guide to advocates on the proper formulation of grounds of appeal in appellate litigation.