When the Bloggers Association of Kenya moved to court in 2018 seeking invalidation of Section 23 of the Computer Misuse and Cybercrimes Act, they argued that the law would be used to reintroduce criminal defamation and limit imparting of information and ideas through social media platform.
Six years later multiple social media users are facing prosecution over posts and statements deemed 'disrespectful and derogatory' to the Presidency and top government officials.
"Section 23 of the Act is similar to section 29 of the Kenya Information and Communication Act, which was declared unconstitutional in 2016. It reintroduces criminal defamation, formerly based on section 194 of the Penal Code; which section was also declared unconstitutional in 2017," they contended.
A number of social media users are in court fighting possible imprisonment for criminal charges related to the publication of false information, especially concerning President William Ruto and disparaging senior government officials and politicians.
They face a jail term of up to 10 years or a fine of Sh5 million, according to section 23 of the Act, which came into force in May 2018 as bloggers' call to have it nullified by the High Court was rejected.
Other online users such as Billy Mwangi, cartoonist Gideon Kibet, Peter Muteti and Bernard Kavuli were abducted by unknown people due to what was believed to be their criticism of the government through social media platforms.
In the courts, the State got a legal backing in its bid to regulate and control the spread of false information.
"Such fake information, if it concerns an individual, dead or alive, it often results in anguish and pain on the individual or family in question. Some of the fake information has resulted in fear and panic amongst members of public and may create chaos, uncertainty and a threat to the national security of the country; which situation may not only escalate especially during the electioneering period but also become emotive," said Justice James Makau in February 2020 while endorsing the enactment of the Cybercrimes Act.
However, the 'offensive' social media posts accelerated last year soon after the June Gen-Z protests, which were provoked by the Finance Bill 2024.
This prompted security agencies, led by the Directorate of Criminal Investigations Cybercrime Unit, to swing in to stem the rising anti-government wave through arrests of persons posting "false information" about the President. The intention was to prevent the dissemination of information that is deemed harmful to the public at large.
A snippet of various criminal cases indicate that the security officers have been using the intelligence service, national bureau of registration of persons and other undisclosed digital mechanisms to trace and arrest the offenders.
And despite being aware of the legal repercussions and seeing suspects being taken to court to answer to the charges, the youths have continued to make such posts.
Among those who have been charged with publishing false information is Mr Jackson Kuria Kihara alias Cop Shakur, a prison officer at Bungoma Main Prison.
He is accused of violating the law by knowingly and unlawfully disseminating false information on his X account, under the username Shakur the Cop, on January 11.
He posted information linking the Executive to the abduction of government critics. Mr Kihara has since been fired from Kenya Prison Service (KPS) and is out on a bond pending outcome of the criminal trial.
The prosecution stated that the ex-prison warder knew that the said false information was calculated to cause panic among citizens.
Early this week, a teacher in Kwale County, Mr Titus Wekesa Sifuna, who hails from Bungoma County, was arraigned at a magistrate court in Milimani, Nairobi to face charges of publishing false information while pretending to be President Ruto.
The 22-year-old man was also accused of impersonating President Ruto on social media and falsely claiming that the Head of State was planning to step down.
The charge sheet stated that Mr Wekesa operated an account on X (formerly Twitter) under the name "I Must Go".
According to court papers filed by the Directorate of Criminal Investigations, Mr Sifuna changed the handle from its initial name and username and started posting hateful messages.
It is alleged that he impersonated President Ruto and published posts suggesting that the Head of State was succumbing to public pressure and preparing to resign.
The prosecution said the X handle changed its name from the original @theif5th to the username 'I Must Go', which featured a photo of President Ruto.
According to the prosecution, the contents on the post were of great harm to the reputation of the country, given that the presidency was a symbol of national unity and ought to be respected and honoured by all.
The suspect was released on a Sh100,000 bail pending further action.
In November last year, a university student named David Oaga Mokaya was arrested for posting a fake funeral procession with misleading captions on social media.
Mr Mokaya allegedly posted the image on his X account, "Landlord @bozgabi," on November 13, 2024, claiming it was of President Ruto being transported.
The court was informed that the image, which depicted a casket draped in the Kenyan flag and escorted by military officers dressed in ceremonial uniforms, was fabricated to give the false impression that it involved the President.
He was accused of falsifying the date and other details to make the post appear genuine. Mr Mokaya pleaded not guilty to the charges and was released on a cash bail of Sh50,000 pending trial.
The case is scheduled to start on May 29, 2025.
Another social media user, Mr Benson Malova Ashiko, also found himself in trouble after publishing false and misleading information about Dr Ruto.
Mr Ashiko is alleged to have posted a casket draped in the Kenya flag and a portrait of the President placed on it.
He is alleged to have made the social media post, under @Mr_Papi5, on January 18, 2025. The post elicited over 1.4 million views and 19,000 likes according to the prosecution.
Still in Nairobi, two people was arraigned in court for running fictitious social media accounts purporting to be the official handles of Interior Principal Secretary Dr Raymond Omollo.
Mr Tony Blair Okello, a university student, was presented before a Kahawa magistrate alongside Tyson Odhiambo Otieno, where they denied the charges.
The pair faced charges of conspiracy to fraudulently and dishonestly create a Facebook account using the names and photographs of the Interior PS with the intention to defraud members of the public.
It is alleged that they committed the offence between January 29 and April 10, 2025 at unknown place within the country, with others not before court,
It was further alleged that on the same day, they intentionally created a Facebook account in the name of Mr Omollo with intent to deceive members of the public.
They purported that the social media account was a genuine account operated by the PS. They denied the charges and were released on a cash bail of Sh35,000 each pending outcome of the court trial.
In December last year, a Cybercafé operator in Ngong, Kajiado County, Mr Tyson Anunda was arrested by police in Nairobi's central business district for wearing a T-shirt written “Must Go 27”.
According to authorities, the message displayed on the clothing was inciting violence.
He was later released after posting a police bail of Sh10,000 pending further action.
Another influencer and online activist, Francis Ng’ang’a Gaitho, also brushed off with the detectives over allegations of violating Section 23 of the Computer Misuse and Cyber Crimes Act.
He was also under investigation for sharing personal information of an unnamed senior public officer.
In January last year, ODM activist Nuru Maloba Okanga was charged with insulting the Head of State.
The charges against Mr Okanga stated that he knowingly and unlawfully published false, defamatory and threatening information online, knowing it to be false and well-calculated to cause fear, and panic among the citizens of Kenya and destroy the reputation of the Executive leadership of Kenya.
It was alleged that he committed the offence between June 7 and 10, 2024.
Far from the capital city, in the northern region, 49 youth were arrested and charged with being drunk and disorderly in February this year, after allegedly booing President Ruto during his tour of Isiolo County.
The youth were later freed by the court, with a warning.
In the coast, social media user Jimmy Charles Mureithi was arraigned in court in April last year over allegations of publishing false information about Kilifi Governor Gideon Mung’aro.
He allegedly knowingly published false information on his Facebook account under the name 'Mureithi Wa Lucy', claiming that Ms Loise Makena swindled Governor Mung’aro, thereby tarnishing her reputation.
Senior Resident Magistrate David Odhiambo heard that the accused, who pleaded not guilty to the charge, allegedly committed the offence on an unknown date, time and location.
When the High Court rejected a call to nullify section 23 of the Act, Justice James Makau observed that the right to freedom of expression was not absolute.
"In enjoyment of a right such as freedom of expression, the state equally has a positive duty to protect its citizens against attacks by others. There is no doubt that freedom as a right has both positive and negative content," he stated.
"In line with the social contract theory, it is in the best interest of government to preserve public order and particularly so in country whose fabric is fragile like Kenya. The country has seen first-hand effect of hate speech and negative ethnicity in the past as exhibited during the 2007 – 2008 post-election violence," said the judge.
