The High Court has certified as urgent a petition seeking to compel the government to develop and publish a comprehensive draft National Artificial Intelligence Policy Framework.
In a petition filed in Kirinyaga, three petitioners allege that the delay by the Ministry of ICT in enacting a comprehensive AI policy, legislation and regulatory framework violates the State's obligations under the constitution to respect, protect, promote and fulfil fundamental rights and freedoms.
Mr John Wangai, Anthony Manyara and Peter Agoro argue that the deployment of high-risk artificial intelligence systems by the government without an adequate legal framework violates and threatens the constitution.
"However, on account of its wide reach, seeking to restrain the respondents from deploying, authorizing and/or operationalizing the use of "high-risk artificial intelligence systems", the Court does not grant the interim relief at the ex parte stage," said the court.
The court directed the petitioners to serve the application on the Ministry of ICT, the Attorney General and Parliament ahead of the hearing on February 19.
The petitioners submitted that there is no comprehensive artificial intelligence policy, legislation or regulatory framework in the country.
This is despite the rapid deployment and proliferation of AI systems across public and private sectors, including in government services, financial institutions, educational institutions, employment, law enforcement, healthcare, elections management and digital platforms.
They said the absence of such a framework creates imminent and ongoing threats to fundamental rights and freedoms guaranteed under the constitution, including the rights to privacy, equality, dignity, fair administrative action and freedom of expression, political participation, access to information, consumer protection, fair labour practices and socio-economic rights.
The petitioners said the existing legal and regulatory framework in Kenya does not adequately address the specific risks, challenges and rights implications posed by artificial intelligence systems.
It is their argument that the Data Protection Act 2019, while establishing important data protection principles and rights, does not contain AI-specific provisions on algorithmic transparency, explainability of automated decisions, or mandatory algorithmic impact assessments for high-risk AI systems.
They added that the Act does not contain specific protections against algorithmic discrimination or governance frameworks for AI training data and AI-generated outputs.
"The violations and threats to fundamental rights, democratic processes and the rule of law occasioned by unregulated AI deployment are imminent, ongoing and will intensify absent urgent judicial intervention, thereby justifying the certification of this matter as urgent," Mr Wangai said.
He said artificial intelligence systems, including generative AI, automated decision-making systems, algorithmic content moderation, biometric systems, facial recognition technologies and AI-enhanced surveillance tools, are being deployed in Kenya.
Mr Wangai said there are no adequate safeguards, oversight, accountability mechanisms, transparency requirements, impact assessments or effective remedies for persons adversely affected.
He claimed that the forthcoming general elections scheduled for August 2027 face heightened risks from AI-driven disinformation, deepfakes, synthetic media, algorithmic manipulation of political discourse and electoral interference.
All these, he said, threaten the integrity of democratic processes and the constitutional right to free and fair elections.
He also said algorithmic profiling, automated decision-making and AI systems are being used in employment, hiring, credit-scoring, micro-finance, insurance, access to public services, law enforcement, criminal justice and social protection without transparency, explainability, fairness safeguards or effective appeal mechanisms, thereby creating risks of discrimination, exclusion and denial of rights
"The Respondents (government) have failed to establish regulatory institutions with adequate expertise, capacity, independence and authority to oversee AI systems, conduct investigations, enforce standards, mediate disputes, or provide guidance on AI governance, leaving persons affected by AI systems without effective access to justice or remedies," he said.
The petition stated that algorithmic content curation, recommendation systems and automated content moderation employed by digital platforms and social media services are shaping political discourse, news consumption and access to information in the country.
They said this has the potential to amplify misinformation and hate speech, suppress legitimate political expression and dissent, manipulate public opinion, and undermine media pluralism and freedom of expression.
"Deepfake technology and synthetic media, including AI-generated video, audio and images that convincingly impersonate real persons, are being developed and disseminated globally and are already accessible to actors in Kenya, posing imminent risks of election disinformation and manipulation of electoral processes through fabricated videos or audio of political candidates, political warfare and erosion of public trust in authentic media, identity theft," Mr Wangai said.
They said these algorithmic systems create serious risks of discrimination, particularly where AI systems are trained on biased historical data, rely on proxies for protected characteristics, or lack adequate testing and auditing for fairness and non-discrimination.
They further claimed that rapid AI-driven automation and job displacement are occurring across various sectors in Kenya without adequate legal frameworks for worker protection, thereby threatening the right to fair labour practices and socio-economic rights.
"AI-powered algorithmic management systems are being deployed in workplaces without transparency, public participation, due process safeguards or protection from unfair or arbitrary algorithmic decisions, undermining fair labour practices and worker dignity," the petition stated.
The petitioners added that children are exposed to AI systems through educational technology platforms, social media and digital services, online gaming and content recommendation algorithms without adequate protections for informed parental consent, age-appropriate design and content, protection from manipulative and addictive features, algorithmic profiling, exposure to harmful and inappropriate content, thereby violating children's rights.
Mr Wangai said academic integrity in Kenya's education system is threatened by the widespread availability of generative AI tools capable of producing essays, assignments and research papers, creating risks of undisclosed AI-generated academic work, plagiarism, and erosion of learning outcomes.
All these are because of the absence of clear national policies, institutional guidelines, or appropriate regulatory responses.
