Bloggers, LSK and DPP escalate cybercrime law battle to Supreme Court
The Supreme Court in Nairobi.
A recent Court of Appeal ruling that struck down key cybercrime speech offences as unconstitutional, but upheld other enforcement provisions, has triggered a Supreme Court battle involving bloggers, journalists and state prosecutors.
Three fresh notices filed in Nairobi show that the Bloggers Association of Kenya (BAKE), the Director of Public Prosecutions (DPP), and civil society groups including the Kenya Union of Journalists, Article 19 East Africa and the Law Society of Kenya are all challenging parts of the appellate decision.
The three sides, dissatisfied in different ways, have formally signalled their intention to seek a final determination from the Supreme Court.
The appeals stem from a March 6, 2026 judgment by the Court of Appeal in Nairobi, which partly invalidated and partly upheld provisions of the Computer Misuse and Cybercrimes Act, 2018.
In the decision, a three-judge bench ruled that Sections 22 and 23 of the law, which criminalised publication of “false or misleading information”, were unconstitutional.
The court found the provisions vague and overly broad, warning they could criminalise legitimate online speech.
“These provisions risk criminalizing satire, opinions and journalistic inaccuracies,” the judges said in the ruling.
"We are aware that some obnoxious characters would be better taken care of by the impugned provisions, however, the risk posed by the provisions to innocent citizens is enhanced and the provisions as drafted cannot be allowed to stand."
The judges added that undefined terms such as “false”, “misleading”, “panic” and “chaos” gave State authorities excessive discretion.
“The lack of clear definitions delegates excessive discretion to authorities in determining criminal conduct,” the court said.
It concluded that the provisions failed constitutional standards, stating they “have failed to pass constitutional muster.”
At the same time, the court upheld several other sections of the law, including offences on unauthorised system interference, unlawful interception of data, cyber harassment and sharing of intimate images.
It found those provisions were clearly defined and necessary.
“The impugned provisions are reasonable and justifiable in an open and democratic society,” the bench ruled, affirming their role in combating cybercrime.
It added that the application of criminal law to online misconduct is necessary, and "cyberspace cannot be a law-free environment, a virtual jungle or wild west devoid of criminal sanctions essential to deter its abuse."
Also Read: The legal risks of exposing an ex online
The mixed outcome has now triggered a three-pronged appeal.
BAKE, which initiated the case in 2018, has filed a notice indicating it is “partially dissatisfied” with the Court of Appeal decision and intends to challenge parts of it at the Supreme Court.
Civil society groups and media organisations that participated in the case have also declared their intention to appeal. They have filed their joint notice through lawyer Dudley Ochiel.
"Take notice that Article 19 East Africa, the Kenya Union of Journalists and the Law Society of Kenya, the 5th, 6th and 7th Respondents, respectively, being partially dissatisfied with the judgement of the Justices Patrick Kiage, Aggrey Muchelule and Weldon Korir, intend to appeal to the Supreme Court, under Article 163 (4) (a) of the Constitution," said lawyer Dudley Ochiel, representing the three respondents.
On the other hand, the Director of Public Prosecutions has taken a more aggressive stance.
The prosecution office, through Principal Prosecution Counsel Njoki Keng'aara, said it is dissatisfied with the entire judgement and intends to appeal against “the whole of the said decision.”
The escalating dispute sets the stage for a decisive and final constitutional showdown over the limits of online speech and state power.
The case traces back to a 2018 petition filed by BAKE challenging multiple sections of the cybercrime law.
The bloggers argued that the law exposed journalists, bloggers and ordinary social media users to arrest and prosecution over vague online speech offences.
Also Read: Safaricom gave student’s data to police without court orders, over post about President Ruto
The High Court in 2020 upheld the contested provisions, prompting the appeal.
Since then, enforcement of the law has intensified, with dozens of Kenyans, especially young social media users, facing criminal charges over online posts.
The Court of Appeal acknowledged the broader context, noting the need for precision when criminalising speech.
"If the intention of the legislature was to criminalise the genre of speech prohibited in Article 33(2) of the Constitution, then we are of the view that the impugned provisions, as drafted, have not succeeded in achieving that purpose," the judges said.
They also observed that existing laws already addressed harmful speech.
The ruling marked a major shift by striking out key speech offences while preserving enforcement tools against cybercrime.
With all sides now heading to the Supreme Court, the final word on the balance between digital freedom and regulation rests with the apex court.
The parties are yet to get directions from the Supreme Court.
Follow our WhatsApp channel for breaking news updates and more stories like this.
