https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9581

Agwanda v Attorney General & 3 others (Constitutional Petition E004 of 2023) [2026] KEHC 9581 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9581 (KLR) Republic of Kenya In the High Court at Kisumu Constitutional Petition E004 of 2023 A Mabeya, J July 3, 2026 IN THE MATTER OF THE CONTRAVENTION AND THREATENED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 10, 19, 20, 24, 33 AND 34 (2b) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE CONSTITUTIONALITY OF SECTION 23 OF THE COMPUTER MISUSE AND CYBERCRIMES ACT NO. 5 OF 2018 Between Erasto Agwanda Petitioner and The Honourable Attorney General 1st Respondent The Director od Public Prosecutions 2nd Respondent and Kenya Union of Journalists 1st Interested Party Media Lawyers Association of Kenya 2nd Interested Party Ruling 1.By a Petition dated 27/6/2023, the petitioner sought the following orders from this Court: -“a)A declaration that section 23 of the Computer Misuse and Cyber Crimes Act No. 5 of 2018 is inconsistent with Article 33 of the Constitution and therefore unconstitutional, null and void.b)A declaration that section 23 of the Computer Misuse and Cyber Crimes Act No. 5 of 2018 contravenes Article 10© of the Constitution and therefore unconstitutional.c)A declaration that that prosecution of the petitioner under section 23 of the Computer Misuse and Cybercrimes Act No. 5 of 2018 is a violation of his fundamental right and freedom of expression under Article 33 of the Constitution.d)This Honourable Court be and is hereby pleased to issue a permanent stay of proceedings in Criminal Case No. E183 of 2020.e)An order of prohibition to issue prohibiting the 2nd respondent from mounting criminal prosecution on the basis of section 23 of the Computer Misuse and Cybercrimes Act, No. 5 of 2018.f)Costs of this suit be borne by the respondents.” 2.Together with the Petition, the petitioner lodged a Motion on Notice dated 29/6/2023 seeking conservatory orders. That Motion was withdrawn on 25/10/2023 and the parties agreed to proceed with the main Petition. 3.The 1st respondent raised a Preliminary Objection dated 18/10/2023 in the following terms: -“1.That this Honourable Court lacks jurisdiction to entertain the Petition and the application as currently presented before it.2.That the Petition falls short on the doctrine of ‘Res-Judicata’ under section 7 of the Civil Procedure Act as the same subject matter has been heard and determined by a court of competent and concurrent jurisdiction in the case of Bloggers Association of Kenya (BAKE) vs Attorney General & 3 Others, Article 19 East Africa & Another (Interested Parties) (2020) eKLR.3.That the Petition is incompetent, bad in law and an abuse of the court process and should be determined with costs to the respondents.” 4.Directions were given that the objection be determined by way of written submissions. It was the 1st respondent’s submission that the Petition sought to have section 23 of the Computer Misuse and Cybercrime Act No. 5 of 2018 declared unconstitutional on the ground that the same contravenes Article 33 of the Constitution. That entertaining the Petition would be against the doctrine of Res-Judicata as espoused in section 7 of the Civil Procedure Act. The case of Republic vs Registrar of Societies Kenya & 2 Others Ex-Parte Moses Kirima & 2 Others (2017) eKLR was cited in support of that contention. 5.That the same issues raised in the present Petition had been raised, heard and determined on merit in the case of Bloggers Association of Kenya (BAKE) vs Attorney General & 3 Others (2020) eKLR. That in the premises, this Court lacks jurisdiction to entertain the Petition. 6.The petitioner submitted that the objection was founded on the misapprehension of both facts and law. That his Petition was based on the basis that due to the communication he had with the former Nyanza Regional Police Commander about an alleged party in Pinecone Hotel on 31/7/2020, he had been arrested and charged in Ksm Cr. Case No. E183 of 2020 - Republic vs Erasto Agwanda. That Count 4 of the charge sheet was that he had published false information contrary to section 23 of the Computer Misuse and Cybercrime Act No. 5 of 2018. 7.That since he had alleged contravention of his constitutional rights, he had properly invoked the jurisdiction of this Court under Article 23 of the Constitution. That the Petition had not breached the Res-Judicata doctrine. 8.Relying on the case of KCB vs Benjoh Amalgamated Ltd (2017) eKLR, the Petitioner submitted that he was not a party in the BAKE case. That no one’s constitutional rights had been infringed in the BAKE case unlike his case. That the facts of his case are not similar to the BAKE case. He urged the Court to be guided by a pronouncement of the Court of Appeal in IEBC & 4 Others vs Ndii & 312 Others (2021) KECA 363 (KLR) that where an issue is pending in the Court of Appeal, a lower court should suspend proceedings before it pending the Court of Appeal pronouncing itself on the matter of law. 9.The other parties did not file any submissions. This is a Preliminary Objection on a point of law, that the matter sought for adjudication is res judicata. A Preliminary Objection is what used to be a demurrer. It is raised on a pure point of law. It is based on the assumption that the facts relied on are not disputed. See Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors (1969) EA 696. 10.The only point to be determined is whether the Petition before this Court infringes on the doctrine of Res Judicata. Res Judicata as held in the case of John Florence Maritime Services Ltd & Anor vs Cabinet Secretary, Transport and Infrastructure & 3 Others (2021) eKLR applies where; the former order or judgment is final, it was on merit, it was made by a court of competent jurisdiction over the subject matter and, there must be between the first and second suit identical parties, subject matter and cause of action. 11.There is no dispute that what was before the Court in the BAKE case was the interpretation of section 23 of the Computer Misuse and Cybercrime Act vis a vis the right to freedom of speech under Article 33 of the Constitution of Kenya. The Court made a determination in that case and held that, section 23 aforesaid, amongst others in that Act, was not unconstitutional. That was a final decision made on merit. It was made by a court of competent jurisdiction. 12.The petitioner contended that the matter was pending before the Court of Appeal. As at the time of this ruling, this Court is not aware of the outcome of that case. The position in law remains that a court of competent jurisdiction had found section 23 of the Computer Misuse and Cybercrime Act as being constitutional. 13.Turning to the present Petition, as already set out at the beginning of this ruling, all the prayers sought therein are directed at the alleged unconstitutionality of section 23 of the Computer Misuse and Cybercrime Act. That is an issue that has already been determined by a court of competent court. 14.The only difference in this case is that the present petitioner was not a party in the BAKE case. Does that remove this Petition from the doctrine of res-judicata? Would applying the doctrine here prejudice the petitioner’s right under Article 50 of the Constitution? I do not think so. 15.Although the petitioner was not a party in the BAKE case, and although as at the time of BAKE Case was mounted, no allegation of infringement of a constitutional right and freedom was alleged, the case was about the interpretation of that particular section vis a vis the Constitution of Kenya. The present case is also sorely on that fact. Were the Petition to have had other prayers that were different from an attempted assault on section 23 of the Computer Misuse and Cybercrime Act vis a vis Article 33 of the Constitution of Kenya, this Court would have saved the Petition from the jaws of Res-Judicata. Now that the entire Petition and its prayers revolve around the alleged unconstitutionality of section 23 aforesaid, the Court has no otherwise but to down its tools. 16.In the premises, the Court finds the Preliminary Objection to be meritorious and allows the same. Accordingly, the Petition dated 27/6/2023 is struck out with costs.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE