In the last two years, the High Court has struck down laws long considered archaic, many of them remnants of the colonial and post-independence authoritarian Kenya that were often used to stifle dissent.
From offences like creating disturbance and attempted suicide, to provisions in the Government Proceedings Act and the Law of Succession, courts have increasingly found that such laws cannot withstand the standards set by the present Constitution.
The decisions mark a huge win for Kenyans, as they dismantle tools that have historically enabled state overreach and repression.
In February, the High Court quashed a section of the Penal Code that created the offence of “creating disturbance in a manner likely to cause a breach of peace,” declaring it inconsistent with the Constitution.
The court found that Section 95(1)(b) of the Penal Code was overly broad and vague, making it difficult for citizens to understand what conduct was prohibited.
The offence, punishable by up to six months in prison, was challenged by the Law Society of Kenya (LSK), which described it as a “colonial relic” that infringed on the right to freedom of expression.
The case also touched on the arrest of Mr Morara Kebaso, an activist, who had been charged under the same provision after monitoring government projects.
Lawyer Morara Kebaso at Milimani Law Court before Chief Magistrate Lucas Onyina, where he is being charged with cyber harassment.
Photo credit: Wilfred Nyangaresi| Nation Media Group
He was arrested on October 8, 2025 and booked at Lang’ata police station before being released on a free bond, pending plea-taking at Kibera Law Courts.
The LSK argued that the offence of “brawling ... in such a manner as is likely to cause a breach of peace” was incompatible with the sovereignty of the people, as it shielded public officials from criticism, restricted discussion of public affairs and denied the defence of truth.
According to the LSK, the provision dated back to the state of emergency years, when colonial authorities used it to suppress dissent. It was later deployed by the Kanu regime to crack down on political opposition.
The court agreed, noting that the historical context of the law amplified its chilling effect on free expression.
“Section 95(1)(b) is a blunt instrument. It employs vague, sweeping language that captures a wide range of protected expression alongside genuinely threatening conduct. Kenya does not lack precise legal tools to address genuine threats to public safety,” Justice Lawrence Mugambi said.
Justice Lawrence Mugambi.
Photo credit: Wilfred Nyangaresi | Nation Media Group
The judge pointed out that existing laws, such as those addressing affray, riot and incitement to violence, as well as provisions in the Public Order Act, are tailored to deal with real threats to public order.
In another ruling in September last year, the High Court struck down Section 226 of the Penal Code, which criminalised attempted suicide. The court held that the provision violated Article 27 of the Constitution by criminalising a mental health condition, thereby endorsing discrimination on the basis of health.
It found that the law “indignifies and disgraces victims of suicide ideation” in violation of Article 28.
“The existence of Section 226 exposes survivors of suicide and potential victims with suicide ideation to possible reprisals, thereby eroding the right to have the highest attainable standard of health envisaged in Article 43 (1) of the Constitution,” the judge said.
The petition had been filed by the Kenya National Commission on Human Rights (KNCHR), the Kenya Psychiatric Association and other organisations, which argued that the law was unconstitutional and harmful.
Section 226 states: “Any person who attempts to kill himself is guilty of a misdemeanour,” carrying a penalty of up to two years in prison, a fine or both. KNCHR said that despite Kenya ratifying the United Nations Convention on the Rights of Persons with Disabilities in 2008, which obliges states to abolish discriminatory laws, the provision remained in force.
It cited World Health Organisation data ranking Kenya as the sixth African country with the highest levels of depression, with at least 1.9 million people affected.
According to KNCHR, criminalising attempted suicide only deepens stigma and trauma, ultimately denying vulnerable individuals access to care and essential support systems.
Tunawiri, a community-based organisation, echoed the concerns, stating that criminalisation discourages people struggling with suicidal thoughts from seeking help.
The organisation said that with proper familial and systemic support, many suicide-related deaths are preventable.
The High Court also weighed in on economic and social rights. In November last year, it declared unconstitutional provisions of the Seed and Plant Varieties Act that criminalised the saving, use, exchange and sale of indigenous and farm-saved seeds.
The law had granted exclusive marketing and property rights to breeders and seed firms, exposing farmers to fines of up to Sh1 million or prison terms of up to two years for engaging in traditional seed practices.
The court found that the provisions violated farmers’ rights to life, livelihood and food, stressing that seed-sharing is central to Kenya’s food security and cultural heritage.
The case was filed by a group of small-scale farmers against the Kenya Plant Health Inspectorate Service (Kephis), following amendments introduced in 2016. The court observed that the law disproportionately disadvantaged small-scale farmers while favouring large commercial entities.
“Regulations 16 and 16(b) are indirectly discriminatory to the petitioners and, therefore, violate Article 27(4) and (5) of the Constitution,” Justice Rhoda Rutto said.
In yet another win, the High Court in June 2025 struck down Section 29(c) of the Law of Succession, which required a widower to prove dependency on his wife before inheriting her estate. The case was brought by Mr Dennis Kivuti Mungai, who argued that the requirement was discriminatory, as widows were not subject to the same burden.
Justice Mugambi agreed, citing Article 45(3) of the Constitution, which guarantees equal rights in marriage.
“By applying different standards as is evident in Section 29 (c) [it] discriminates against the man in the relationship based on sex, which is prohibited under Article 27 (4) of the Constitution and also undermining the spirit of equality reinforced under Article 45 (3) as the dominant principle for such unions,” he said.
Justice Nixon Sifuna.
Photo credit: File
The courts have also addressed procedural barriers to justice. In 2024, High Court judge Nixon Sifuna declared Sections 13A and 21 of the Government Proceedings Act unconstitutional. These provisions require an individual to issue a 30-day notice to the Attorney General before filing a suit against the government and bar the attachment of state property.
“The legislation is an archaic outfit that inadvertently escaped the legal reforms that sought to align the laws with the 2010 Constitution and the new legal order it had established, as well as the wind of change that it brought,” he said.
The decision was suspended after the Kenya Deposit Insurance Corporation (KDIC) appealed. A three-judge bench of the Court of Appeal agreed that the ruling could have far-reaching consequences.
In April 2024, the High Court quashed section 166 of the Criminal Procedure Code, which mandated detention at the president’s pleasure, for persons found guilty but insane.
The court said the indefinite nature of detention, without judicial oversight, was contrary to the independence of the Judiciary.
A man was charged with murder in 1988. He was found guilty but insane and sentenced to be detained at the president’s pleasure. Before challenging the law, the man had been in prison for over more than 34 years, during which his mental state had reportedly improved.
