https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9453

Law Society of Kenya & 8 others v Attorney General & 17 others (Constitutional Petition E671, E673, E677, E698, E705 & E716 of 2025 (Consolidated)) [2026] KEHC 9453 (KLR) (Constitutional and Human Rights) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9453 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E671, E673, E677, E698, E705 & E716 of 2025 (Consolidated) PM Nyaundi, J July 2, 2026 (FORMERLY KERUGOYA PETITION NO. E 016 OF 2025) Between Law Society of Kenya 1st Petitioner Rueben Kigame Lichete 2nd Petitioner Kenya Human Rights Commission (KHRC) 3rd Petitioner Francis Awino 4th Petitioner Hon. Babu Owino 5th Petitioner The Kenya Section Of The International Commission Of Jurists (ICJ-Kenya) 6th Petitioner Article 19 East Africa 7th Petitioner Bloggers Association Of Kenya (BAKE) 8th Petitioner Hon. Jane Njeri Maina 9th Petitioner and The Hon. Attorney-General 1st Respondent The Cabinet Secretary, Ministry Of Information Communication And Digitial Economy 2nd Respondent The Communications Authority Of Kenya 3rd Respondent The Inspector General (IG) Of The National Police Service 4th Respondent The National Assembly 5th Respondent The Speakser Of The National Assembly 6th Respondent Parliament Of Kenya 7th Respondent National Computer And Cybercrimes Co-Ordination Committee (NC4) 8th Respondent The Director Of Public Prosecutions 9th Respondent The Cabinet Secretary, Ministry Of Interior And National Administration 10th Respondent and Kenya National Commission on Human Rights 1st Interested Party Kenya Union Of Journalists 2nd Interested Party Media Council Of Kenya 3rd Interested Party Data Protection Commissioner 4th Interested Party Hon. David Munyi Mathenge 5th Interested Party Hon. Murango James Kamau 6th Interested Party Amnesty International Kenya 7th Interested Party Katiba Institute 8th Interested Party Judgment Introduction: 1.Pursuant to consent of parties herein, on 6th November 2025 the Court directed that the following Petitions be consolidated; Petition E671 OF 2025; Petition E673 of 2025; Petition E677 of 2025; Petition E698 of 2025; Petition E705 of 2025 and Petition E716 of 2025, with Petition E671 designated as the lead file. At the same time the Court directed that Kenya National Commission on Human Rights (KNCHR), Katiba Institute and Hon. Murango James Kamau application to join as interested parties be allowed. The last consequential order was the grant of conservatory orders suspending the enforcement, implementation, and/ or operation of the amended words ‘is likely to cause them to commit suicide’ in Section27(1)(b) and to Section 6(i)(ja) 2025 touching on the functions of the National Computer and Cybercrimes Coordination Committee (NC4/NCCCC introduced by the Computer Misuse and Cybercrimes (Amendment) Act, 2025 2.The following pleadings were filed by the Petitioners; The 1st Petitioner’s Petition dated 21st day of October alongside Supporting affidavit of Florence Muturi sworn on 21st October 2025. The 2nd and 3rd Petitioners Petition dated 21st October, supported by the affidavits of Reuben Kigame Lichete sworn on 21st October 2025 and 11th November 2025. The 4th Petitioners, Petition dated 22nd October 2025 and affidavit in support sworn by him on the same date. The 5th Petitioner’s Petition dated 28th October 2025, supported by affidavit of Babu Owino sworn on 28th October 2025. The Petition of the 6th, 7th and 8th Petitioners dated 30th October 2025 supported by the affidavit of Eric Mukoya sworn on 30th October 2025 and supplementary affidavit of Mathew Mutiso sworn on 26th November 2025. Petition of the 9th Petitioner dated 27th October 2025 and supported by her affidavit sworn on even date. 3.The Petitions mount a constitutional challenge against the amendments to the Principal Act vide the Computer Misuse and Cybercrimes (Amendment) Act, 2025 and invite the Court to examine the breadth, ambiguity, and institutional design contending that it raises profound constitutional questions. It is argued that the challenged provisions of the Act are incompatible with the rule of law, the separation of powers, and the guarantees of the Bill of Rights. 4.The Petitioners contend that the amendments to Section 27 and Section 6(1) of the Principal Act introduce offences and administrative powers whose contours are imprecise, whose reach is excessive, and whose operation is unchecked by judicial oversight. In their view, Parliament has enacted provisions that criminalise expression based on subjective emotional impact, speculative psychological outcomes, or undefined moral or ideological categories, thereby failing the constitutional requirement that criminal law be clear, accessible, and predictable. The Petitioners contend that the Amendment Act impermissibly blurs the line between legitimate regulation and unconstitutional overreach. 5.The Petitioners argue that the amended Section 27 (1)(b) criminalises expression based on vague and subjective standards, phrases such as “grossly offensive,” “likely to cause suicide,” or “serious emotional distress.” These formulations, they contend, lack objective criteria and invite arbitrary enforcement. It is contended that the effect of the amendments is not hypothetical: journalists, activists, and ordinary citizens have already begun to self‑censor. 6.The Petitioners argue that a constitutional democracy must tolerate and even protect, speech that is uncomfortable, critical, or unsettling. The State it is argued may regulate expression only within the narrow confines set out in Article 33(2). A law that penalises speech because it may cause speculative emotional harm risks transforming criminal law into an instrument of intimidation rather than protection. 7.The amendments to Section 6(1) empower the National Computer and Cybercrimes Coordination Committee (NC4/NCCCC) to block websites and applications is challenged as this is done without prior judicial authorisation. Further the Petitioners argue that this constitutes administrative prior restraint. This, it is contended, is incompatible with constitutional guarantees of expression and fair administrative action and is tantamount to allocating a judicial function on an administrative body. 8.The Petitioners challenge the mandatory verification of social media accounts, arguing that it infringes the right to privacy, undermines anonymity, and conflicts with the Data Protection Act. It is contended that absent anonymity whistleblowers, activists and marginalised groups will be exposed to surveillance by state agents and targeting harassment and victimization. 9.Further, the Petitioners contend that the Bill concerned county functions and therefore required Senate involvement under Article 110(1) of the Constitution. The Petitioners also contend that the Bill was not subjected to public participation. The Act is therefore constitutionally infirm. 10.It is stated that the penalties prescribed under Section 27(2), fines up to Kshs 20 million and imprisonment up to 10 years, are grossly disproportionate. The Petitioners argue that criminal sanctions of such severity cannot be justified where the alleged harm is speculative, subjective, or non‑physical. 11.The Petitions contend that the Act as amended threatens to entrench a regime of digital authoritarianism, where expression is suppressed, privacy is eroded, and administrative bodies wield powers traditionally reserved for courts. The Petitioners do not deny the legitimacy of combating cybercrime; rather, they insist that such efforts remain within constitutional bounds. The Consolidated Petition seek the following orders-a.A declaration that Section 6(1) (ja) of the Amendment Act is unconstitutional, invalid, and void.b.A declaration that Section 6(1)(j) (criminalising “pornographic, immoral or sexually explicit content”) is unconstitutional, invalid, and void.c.A declaration that the impugned provisions are vague, overbroad, and inconsistent with the principle of legality.d.A declaration that the impugned provisions unjustifiably limit rights under Articles 24, 31, 33, 34, 35, 36, 47, 50, and 160 of the Constitution.e.A declaration that the penalties under the Amendment Act (up to Kshs 20,000,000 and/or 10 years’ imprisonment) are manifestly excessive and disproportionate.f.A declaration that empowering the National Computer and Cybercrimes Coordination Committee (NC4/NCCCC) to block websites or applications without judicial oversight is unconstitutional.g.A declaration that the Amendment Act violates separation of powers by vesting judicial‑like powers in an administrative body.h.A declaration that the Amendment Act was enacted without meaningful public participation, contrary to Articles 10 and 118.i.A declaration that the Amendment Act concerns county governments, and failure to involve the Senate under Article 110(1) renders it unconstitutional.j.A declaration that mandatory verification of social media accounts violates the right to privacy and conflicts with the Data Protection Act.k.An order of certiorari quashing any directives or decisions issued under the impugned provisions, including website‑blocking directives.l.An order of prohibition restraining the Respondents from enforcing or relying upon the impugned provisions.m.Conservatory orders suspending enforcement or implementation of the impugned provisions pending determination of the Petitions.n.An order of mandamus directing the National Assembly to review and align the Computer Misuse and Cybercrimes Act with the Constitution and Kenya’s international human rights obligations.o.An order that the Respondents bear the costs of the Petitions.p.Any other relief the Court may deem just and appropriate. Summary of the Responses 12.The filings by the respondents include; Replying affidavit of the 1st respondent sworn by Dr. James Kimuyu on 31st October 2025. Replying affidavits of the 2nd respondent sworn by William Kabogo Gitau on 5th November 2025 and 10th November 2025, replyingaffidavit of the 5th Respondent sworn by the Samuel Njoroge on 29th October 2025; Replying affidavit of the 3rd respondent sworn by Samwel Rambo on 10th November 2025. The 9th Respondents replying affidavit sworn by Hon. Kipchumba Murkomen on 10th November 2025. Ist Respondents grounds of opposition dated 3rd November 2025. The 4th Respondent’s submissions dated 10th November 2025. 8th Respondent’s submissions dated 26th November 2025. 13.The 3rd Respondent filed a preliminary Objection dated 4th November 2025. 14.The Respondents emphasise that Section 27 of the Computer Misuse and Cybercrimes Act, has already undergone full judicial scrutiny Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR) and in that case the court upheld the constitutionality of the provision, they underscore that an appeal on the same question is pending before the Court of Appeal, and therefore the High Court should refrain from revisiting issues already sub judice. It is argued that the rights not being absolute, the provisions are a legitimate limitation within the acceptable bounds of Article 24 of the Constitution. 15.The respondents further situate the amendments within the obtaining country context and argue that cyberspace, being borderless and susceptible to harm, requires calibrated regulation to protect national security, public order, dignity, privacy, and vulnerable groups, particularly women and children. They invoke comparative constitutional practice and international human rights instruments to justify permissible limitations on expression and privacy. 16.The Respondents assert that the amendments serve legitimate state interests; preventing cyber‑harassment, curbing harmful digital content, safeguarding mental health, and ensuring accountability in online spaces. They argue that the law is neither vague nor overbroad, pointing to objective elements such as intent, causation, and demonstrable harm. They maintain that criminalisation targets conduct, not opinion, and that prosecutorial and judicial oversight provides adequate safeguards against abuse. The respondents further assert that the sentences are proportional, asserting that the amendments are narrowly tailored to address serious digital harms without undermining the essence of protected freedoms. 17.The Grounds of Opposition filed by the Respondents characterise the petitions as speculative, premature, imprecise, and an abuse of court process. It is argued that the petitions fail precision test on constitutional Petitions, lack concrete evidence of rights violations, and improperly invite the Court to intrude into legislative policy‑making. They insist that statutes enjoy a presumption of constitutionality, and that the Petitioners have not rebutted this presumption through cogent factual or legal demonstration. 18.The Grounds also challenge the Petitioners’ framing of Section 27 as vague or chilling. Respondents argue that the provision is clear, judicially manageable, and consistent with democratic practice in comparable jurisdictions. They reject claims of inadequate public participation, asserting that Parliament followed constitutional and procedural requirements. They further contend that allegations of arbitrary enforcement are hypothetical, noting that criminal statutes inherently rely on case‑specific judicial oversight to determine liability. Summary of 1st Interested Parties Pleadings 19.The Ist Interested Party, The Kenya National Commission on Human Rights has sworn an affidavit by Dr. Bernard Mogesa in support of the Petition. The 1st interest Party supports the Petition to the extent only that they seek to safeguard constitutional rights, particularly freedom of expression, media freedom, and access to information, while emphasizing that these rights, though not absolute, may only be limited within the strict confines of Article 24. The 1st Interested Party argues that Section 27 of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 introduces vague, subjective, and ambiguous standards that permit arbitrary enforcement, undermine due process, and chill legitimate expression. 20.The Commission further contends that mental health concerns, such as suicide, require a multisectoral public health response, not criminalization, consistent with prior jurisprudence of decriminalizing attempted suicide. 21.The 1st Interested Party stresses Kenya’s obligations under international human rights instruments and reiterates that any statutory limitation must be lawful, reasonable, and proportionate. Response of the 4th Interested Party 22.The 4th Interested Party’s affidavit is sworn by John Walubengo OGW on 11th February 2026. He avers that its role in the consolidated petitions is strictly to assist the Court as an expert on data protection. It clarifies that although the Petitioners challenge the Computer Misuse and Cybercrimes (Amendment) Act, 2025 on grounds relating to mandatory identity verification for social media users, no such provision exists in the assented text of the law. Consequently, there is no new statutory obligation that presently triggers the 4th Interested Party’s regulatory action or creates a direct conflict with the Data Protection Act (DPA). The 4th Interested Party emphasizes that the DPA remains the governing framework for all personal data processing in Kenya, and any future measures involving personal data must comply with principles of lawfulness, fairness, necessity, proportionality, and data minimization. 23.The Petition was canvassed via written submissions. The 1st, 2nd, 3rd, 4th 6th, 7th and 8th Petitioners and the 1st and 8th Interested Parties highlighted their submissions on 13th February 2026. The 5th and 9th Petitioners along with the respondents elected to adopt their submissions when the matter came up for further hearing and highlighting of submissions on 6th May 2026. Summary of the Petitioners’ Submissions 24.In response to the res judicata challenge it is submitted that the doctrine does not apply because the present challenge concerns new, distinct, and previously unadjudicated provisions introduced through the Computer Misuse and Cybercrimes (Amendment) Act, 2025. They emphasize that earlier litigation, Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR) and the pending Civil Appeal No. 197 of 2020, concerned only the 2018 principal Act, not the 2025 amendments. 25.Res judicata cannot bar constitutional scrutiny of legislative provisions that did not exist at the time of the earlier proceedings. They rely on IEBC v Maina Kiai & 5 Others [2017] eKLR and Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & Another [2016] eKLR, insisting that the doctrine requires identity of issues, parties, and subject matter, those conditions are not present. 26.It is further submitted that the Respondents’ argument would produce an unconstitutional absurdity: that once any statute is litigated, Parliament could thereafter amend it freely, even in ways that violate the Constitution, while courts would be barred from review. They stress that the amendments introduce novel constitutional questions, including administrative website blocking, mandatory identity verification, and criminalization of speech “likely to cause suicide,” none of which have ever been adjudicated. They also note that the Court of Appeal cannot determine issues not before it, citing the principle articulated in KCB v Muiri Coffee Estate. Finally, they argue that constitutional petitions, being public interest litigation, cannot be foreclosed by res judicata, relying on Centre for Rights Education and Awareness & Another v John Harun Mwau & 6 Others [2012] eKLR. In sum, they assert that the Respondents’ objection is legally untenable and must be rejected 27.It is submitted that the National Assembly enacted the statute through a procedurally defective process, violating Articles 10 and 118 on public participation and Article 110 on bicameralism. They emphasize that the Bill’s own sponsor admitted it was a Bill concerning county governments, yet the Senate was excluded, contrary to the mandatory framework affirmed in Speaker of the Senate & Another v Attorney‑General & Another [2013] eKLR and reaffirmed in Senate & 3 Others v Speaker of the National Assembly & 10 Others [2025] KESC 49 (KLR). In their view, this procedural breach renders the Act void ab initio. 28.Substantively, it is submitted that the Act introduces vague, overbroad, and indeterminate offences, particularly through amendments to Section 27, which now criminalizes expression “likely to cause suicide,” “psychological harm,” or “distress.” They submit that these terms lack definitional precision, violate the principle of legality, and invite arbitrary enforcement, concerns squarely addressed in Geoffrey Andare v Attorney General & 2 Others [2016] eKLR, Law Society of Kenya v Kenya Revenue Authority & Another [2017] eKLR, and National Assembly v Katiba Institute & 6 Others [2023] KECA 1174 (KLR). Drawing from comparative jurisprudence, they invoke Papachristou v City of Jacksonville (1972) and Grayned v City of Rockford (1972) to demonstrate that vague criminal statutes offend due process and chill protected expression. 29.The Petitioners further challenge Section 6(1)(ja), which empowers the National Computer and Cybercrimes Coordination Committee (NC4) to block websites and applications on undefined grounds such as “religious extremism,” “cultism,” or “unlawful activities.” They argue that this constitutes an unconstitutional delegation of judicial power to an administrative body, violating Articles 159 and 160 of the Constitution. They rely on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, Ahmet Yildirim v Turkey (2012) ECHR, and Vladimir Kharitonov v Russia (2017) ECHR, which condemn administrative censorship lacking judicial oversight and warn against collateral suppression of lawful content. The Petitioners characterize NC4’s powers as a “digital‑era star chamber,” incompatible with constitutional guarantees of fair administrative action under Article 47. 30.The Petitioners also assert that the Act conflicts with the Data Protection Act, 2019, particularly through alleged mandatory identity verification for social media users. The Petitioners maintain that the Act undermines privacy rights under Article 31, violates data minimization principles affirmed in Katiba Institute v Communications Authority of Kenya & 2 Others [2025] KEHC 10568 (KLR), and creates a surveillance architecture incompatible with constitutional and international standards, including Article 19(3) of the ICCPR. They argue that criminalizing private digital consumption or expression, such as under Section 6(1)(ja), constitutes unconstitutional moral paternalism, contrary to Article 8 of the Constitution and jurisprudence in EG & 7 Others v Attorney General [2019] eKLR. 31.It is submitted that the amendments fail the Article 24 proportionality test as articulated in CORD v Republic [2015] eKLR and Muruatetu [2017] eKLR. It is therefore submitted that the Court should declare the amendments unconstitutional as they are incompatible with the democratic values enshrined in the 2010 Constitution Submissions of the Interested Parties 32.The 1st Interested Party, the Kenya National Commission on Human Rights (KNCHR), submits that the impugned amendments to section 27 of the Computer Misuse and Cybercrimes (Amendment) Act 2025 unconstitutionally vest judicial power in an executive body, the National Computer and Cybercrimes Coordination Committee, by permitting it to unilaterally render websites or applications inaccessible without the safeguards of Articles 47 and 50 of the Constitution. 33.KNCHR argues that this bypasses the High Court’s exclusive jurisdiction under Article 165(3) and violates the right to fair administrative action as elaborated under the Fair Administrative Action Act. The Interested Party further contends that the amendments unjustifiably limit freedom of expression, media freedom, access to information, and fair trial rights under Articles 33, 34, 35, 47 and 50. Drawing on Article 19 of the ICCPR and the UN Human Rights Committee’s General Comment No. 34 (CCPR/C/GC/34), KNCHR emphasizes that any restriction on expression must meet the strict tests of legality, necessity, and proportionality. 34.It relies on Amnesty International Togo and Ors v. The Togolese Republic, ECW/CCJ/JUD/09/20, the Economic Community of West African States (ECOWAS), to underscore that internet access is a derivative right under Article 9 of the African Charter, and that arbitrary shutdowns impermissibly chill expression. 35.KNCHR further submits that the impugned amendments are vague, overbroad, and incapable of consistent application, thereby offending the principle of legality and the non‑derogable right to a fair trial under Article 25(c). Phrases such as “likely to cause,” “extremism,” and “cultism” lack statutory precision and invite subjective enforcement, contrary to the rule articulated in Geoffrey Andare v Attorney General & 2 others [2016] KEHC 7592 (KLR), where the Court held that criminal provisions must be sufficiently clear to enable citizens to regulate their conduct. 36.The 1st Interested Party also invokes the European Court of Human Rights decision in Sunday Times v United Kingdom, Application No. 6538/74, cited in the Geoffrey Andare case (Supra), to reinforce the requirement of foreseeability in criminal legislation. It argues that the amendments impose content‑based prior restraint requiring strict scrutiny, relying on Wanuri Kahiu & another v CEO–Kenya Film Classification Board Ezekiel Mutua & 2 others; Article 19 East Africa (Interested Party) & Kenya Christian Professionals Forum (Proposed Interested Party) [2020] KEHC 6500 (KLR), where the Court warned that prior restraint is a “drastic interference” permissible only where grave injustice is imminent. KNCHR concludes that the amendments fail the Article 24 test and should be declared unconstitutional under Article 2(4) 37.The 8th interested Party supports the Petition. On whether the Petition is res judicata, the 8th Interested Party submits that the challenge to Section 27 is not barred by prior litigation in Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR) or the pending Civil Appeal No. 197 of 2020, because the present challenge concerns a new statutory ‘ingredient’ introduced by the 2025 amendment, namely, the “likely to cause suicide” clause. Applying the Supreme Court’s test in John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), Katiba argues that the subject matter is not identical, and res judicata must be sparingly invoked in constitutional litigation, as emphasized in Okiya Omtatah Okoiti & Another v Attorney General & 6 Others [2014] eKLR. Accordingly, the doctrine does not bar the present constitutional challenge. 38.The 8th Interested Party submits that the Computer Misuse and Cybercrimes (Amendment) Act 2025 introduces amendments, particularly to Sections 6 and 27 of the principal Act, that are constitutionally infirm for being broad, uncertain, vague and ambiguous. These amendments, it is argued, violate the principle of legality and the doctrine of void for vagueness as articulated in Law Society of Kenya v Kenya Revenue Authority & another [2017] KEHC 8539 (KLR) and National Assembly v Katiba Institute & 6 others [2023] KECA 1174 (KLR). Katiba Institute contends that the amendments impermissibly delegate sweeping powers to the National Computer and Cybercrimes Coordination Committee, enabling website shutdowns on undefined grounds such as “unlawful activities,” “religious extremism,” and “cultism,” thereby inviting arbitrary and discriminatory enforcement contrary to Articles 10, 47 and 50 of the Constitution. 39.The 8th Interested Party further argues that the amendment to Section 27(1)(b), adding liability for communication “likely to cause that other person to commit suicide”, is unconstitutionally vague. It raises complex questions of causation, foreseeability, mental health, and mens rea, making it impossible for an ordinary person to regulate their conduct with reasonable certainty. The Party relies on the vagueness jurisprudence in Grayned v Rockford 408 U.S. 104 (1972) (as adopted locally in National Assembly v Katiba Institute (Supra)) and notes that the amendment risks criminalizing legitimate expression protected under Articles 33, 34 and 35 of the Constitution. Given the severe penalties, up to ten years’ imprisonment, it is submitted that clarity is imperative. 40.On the question of limitation of rights, the 8th Interested Party submits that the impugned provisions fail the proportionality test under Article 24(1) of the Constitution, as well as the standards articulated in R v Oakes [1986] 1 S.C.R 103, Wanuri Kahiu & another v CEO, Kenya Film Classification Board Ezekiel Mutua & 2 others [2026], and General Comment No. 34 (ICCPR). Katiba Institute argues that the amendments are neither narrowly tailored nor the least restrictive means of addressing cyber‑harassment or harmful online content. The broad and undefined terminology, coupled with the Committee’s unchecked powers, creates a chilling effect on expression and undermines media freedom and access to information 41.The 4th Interested Party submits that the Petitioners’ challenge to the Computer Misuse and Cybercrimes (Amendment) Act, 2024 is fundamentally undermined by a factual misapprehension. It is submitted that whereas the Petitioners anchor their privacy and dataprotection claims on an alleged mandatory identityverification requirement for all socialmedia users, upon a textual review of the enacted statute, no such provision exists. The Interested Party emphasizes that the Act instead introduces targeted cybersecurity measures, including expanded definitions of “access,” “identity theft,” and “virtual account,” and empowers the National Computer and Cybercrimes Coordination Committee to restrict access to websites promoting unlawful activities. 42.In line with Anarita Karimi Njeru v Republic (Misc. Crim. Application No. 4 of 1979) [1979] eKLR, the 4th Interested Party argues that constitutional petitions must meet the threshold of reasonable precision, and that the Petitioners’ reliance on a nonexistent statutory clause fails this standard. The 4th Interested Party further notes that courts have consistently insisted on precision in constitutional litigation, as reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, where the Court of Appeal underscored those pleadings must clearly identify the impugned act and the manner of infringement. 43.The 4th Interested Party contends that the Data Protection Act, 2019 (DPA) remains the governing framework for all personal data processing in Kenya, and that nothing in the Impugned Act dilutes or overrides its protections. Any processing of personal data arising from cybercrime investigations, such as subscriber information or digital content review, must comply with the DPA’s principles of lawfulness, necessity, proportionality, and accountability. 44.The 4th Interested Party stresses that the two statutes operate complementarily: the DPA provides overarching privacy safeguards, while the Impugned Act addresses specific cybercrime threats. This interpretation aligns with judicial precedent, including Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR), where the High Court upheld cybercrime related investigative powers so long as they were accompanied by judicial oversight and proportional safeguards. The Interested Party therefore urges the Court to find that the Petitioners’ claims, being premised on a nonexistent statutory requirement, cannot stand, and that the Impugned Act does not violate Article 31 of the Constitution nor Sections 25 and 27 of the DPA. Analysis and Determination 45.Upon having carefully considered the pleadings herein, submissions filed and the relevant law, I frame the following as the issues for determination-1.Is the Petition res judicata?2.Arising from (a) above (if in the negative), whether there were procedural violations during the passing of the Amended Act3.Whether the impugned provisions of the Amended Act violate the Constitution?4.Arising from (a), (b), (c) above what are the consequential orders Whether the Consolidated Petitions are res judicata? 46.It is submitted by the respondents that the Petitions must fail for being res judicata on account of the decision in Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR) and are rendered sub judice on account of the pending appeal in Civil Appeal 197 of 2020. The said appeal was concluded and judgment delivered and therefore the appropriate inquiry is whether the Petitions are res judicata on account of the decisions in the High Court and Court of Appeal in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR) 47.The principles to guide a court in determining whether or not a matter is res judicata are well settled by statute and judicial precedent. Section 7 of the Civil Procedure Act provides-7.Res judicataNo court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.Explanation. — (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating 48.The Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Coffee Estate Ltd & 3 others [2016] KESC 6 (KLR) underscored that the principle cannot be overlooked as it serves the public interest requirement that there should be finality in litigation.(52)Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights…(54)The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. 49.It is not in dispute that at issue in Bloggers Association of Kenya (BAKE) v Attorney General & 3 others; Article 19 East Africa & another (Interested Parties) [2020] KEHC 7924 (KLR) and the subsequent appeal in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR) was the constitutionality of provisions in the computer misuse and Cybercrime Act 2018. 50.Although the consolidated Petitions are stated to challenge the constitutionality of the provisions ofthe Computer Misuse and Cybercrimes (Amendment) Act, 2025, it is evident from the prayers sought that some of the prayers sought may fall afoul of the res judicata principle. As stated by the Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Coffee Estate Ltd & 3 others [2016] KESC 6 (KLR) the principle bars a litigant from having a second bite of the cherry. 51.The Court of Appeal in its decision affirmed the finding of the High Court on the Constitutionality of Sections 3, 5, 16, 17, 22, 27, 28, 29, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 48, 49, 50, 51, 52 and 53 of the Principal Act. In effect therefore rendering res judicata, the prayers in this Court targeting the Constitutionality of Section 27 (1) (C) and (8) on some of the offences created under the act and the sentence prescribed. Also, res judicata is the prayer for a Declaration that the State has no authority to legislate or enforce morality in private conduct or digital expression of adults as this issue was determined in the earlier decisions. 52.The issues therefore that will survive determination are those that invite the Court to scrutinize the process leading to the enactment of the impugned amended Act and the constitutionality of provisions of the Amended Act.Arising from (a) above, whether there were procedural violations during the passing of the amended Act 53.The process leading to the enactment of the Amended Act is faulted on two grounds1.Failure to involve the Senate2.Failure to subject the impugned provisions to public participation. 54.The 6th, 7th, 8th and 9th Petitioners contend that the legislative process culminating in the enactment of the impugned statute was constitutionally defective for want of mandatory bicameral involvement. They assert that the National Assembly proceeded to legislate upon a matter that, by its very nature and effect, concerns county governments, thereby triggering the procedural safeguards embedded in Article 110 of the Constitution. 55.They argue that Article 110 is not aspirational, nor merely directory. It is mandatory, and its requirements are neither optional nor subject to legislative convenience. The Petitioners therefore submit that the National Assembly’s unilateral action, undertaken without consultation with or participation of the Senate, constitutes an unforgivable constitutional contravention. This omission renders the impugned law procedurally invalid, unconstitutional, and void ab initio. 56.The 5th, 6th and 7th Respondents submit that this issue was determined by the Court in Senate & 3 others v Speaker of the National Assembly & 10 others [2025] KESC 11 (KLR) when it found that the Principal Act did not require the participation of the Senate. In arriving at that decision, the court observed –[127]…..On our part, we have assessed each of the seventy provisions of the statute and note that they are focused on providing for offences relating to computer systems; enabling the detection, prohibition, prevention, response, investigation and prosecution of computer and cybercrimes; and facilitating international co-operation in dealing with computer and cybercrime matters. The sections provide for the establishment of the National Computer and Cybercrimes Co-ordination Committee, create offenses, provide investigation procedures, and create a regime for international cooperation. None of the Act’s provisions affects the functions and powers of County Governments. 57.The impugned Amended Act is expressed to be ‘An Act of Parliament to amend the Computer Misuse and Cybercrimes Act, Cap. 79C and for connected purposes. I have looked at the amendments, like the principal Act; the amended Act sets out offences and provides for the functions of the National Computer and Cybercrimes Coordination Committee established under Section 4 of the Act. None of these touch on the functions of the County. The challenge of the Act on this ground therefore fails. 58.On the second limb, the 4th, 6th, 7th, 8th and 9th Petitioner submit that on account of lack of meaningful public participation the law contravenes Article 10 and 118 of the Constitution and should be declared unconstitutional. In Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) (Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of 2023 (Consolidated)) [2023] KEHC 25872 (KLR) (Constitutional and Human Rights) (28 November 2023) (Judgment) the Court emphasised that ‘public participation is the hallmark of constitutional democracy and manifestation of the people’s sovereignty’. The Court underscored that the question as to whether the public exercise was sufficient to meet the test was one of fact. 59.The threshold for Constitutionally compliant public participation was laid down by the Supreme Court in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Ltd (Affected Party) [2019] KESC 15 (KLR) in the guidelines it set out as follows-[96]….Guiding Principles for public participation(i)a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.(v)Public participation is not an abstract notion; it must be purposive and meaningful.(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.(viii)Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following:a.clarity of the subject matter for the public to understand;b.structures and processes (medium of engagement) of participation that are clear and simple;c.opportunity for balanced influence from the public in general;d.commitment to the process;e.inclusive and effective representation;f.integrity and transparency of the process;g.capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 60.Further in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) the Supreme Court stated-The implication of the foregoing principles is that the process of public participation ought not be reduced to a mere symbolic box-ticking ritual with no influence in the legislative process. We are also of the considered view that the approach we take on this question should be one that ensures that public participation is ‘purposive and meaningful’ and not one that empties the Constitution of its meaning 61.The Petitioners posit that the process leading to the enactment of the impugned Amended Act was rushed and that the views of the public were not incorporated. In addition, the 9th Petitioner faults the process arguing that the amendment was introduced through a supplementary order paper, thereby ambushing members of the National Assembly. 62.The 5th, 6th and 7th Respondents, through the affidavit of Samuel Njoroge, C.B.S., sworn on 29th October 2025, have provided a detailed account of the public participation process preceding the enactment of the impugned statute. It is deposed that following publication of the Bill on 9th August 2024, the matter was committed to the Departmental Committee on Communication, Information and Innovation, which thereafter issued public advertisements on 18th February 2025, inviting comments from members of the public and relevant stakeholders. The Respondents have annexed the Committee’s Report, together with extracts of the Hansard capturing the parliamentary debates culminating in passage of the legislation. 63.Having carefully examined the Committee’s Report and the Hansard record, I am guided by the Court’s pronouncement in Okoiti & 6 others v Cabinet Secretary for the National Treasury and Planning & 3 others; Commissioner-General, Kenya Revenue Authority & 3 others (Interested Parties) (Petition E181, E211, E217, E219, E221, E227, E228, E232, E234, E237 & E254 of 2023 (Consolidated)) [2023] KEHC 25872 (KLR) (Constitutional and Human Rights) (28 November 2023) (Judgment)). In that decision, the Court reaffirmed that public participation is a constitutional imperative. The Court emphasized that the inquiry is qualitative, not mechanical: the Legislature must demonstrate that it took reasonable steps to facilitate meaningful engagement, and a challenger must show that the process was illusory, denied, or materially deficient. 64.Applying that standard here, I am persuaded that the Legislature discharged its obligation under Articles 10 and 118. The record demonstrates that the public was afforded a real and reasonable opportunity to be heard, and that Parliament considered the views submitted before proceeding to debate and enact the law. I find therefore that, in this instance, the requirement of public participation was sufficiently satisfied. 65.The Petitioners argue that the amendments were introduced post the public participation and that these were significant amendments and should have been subjected to public participation afresh. I have considered both the Bill and the Act amended, and this assertion is not supported by the record. The amendments to Section 27 and Section 6 are contained in the Bill that was subjected to public participation. Whether the impugned provisions of the Amended Act violate the Constitution? 66.The provisions that are challenged are1.the amendment to Section 6 of the Principal Act to introduce Paragraph (ja) that reads6.Functions of the Committee(1)The Committee shall-(a)..(ja)where it is proved that a website or application promotes unlawful activities, inappropriate sexual content of a minor, terrorism or religious extremism and cultism, issue a directive to render the website or application inaccessible. 67.The Petitioners further contend that the paragraph introduces a form of prior restraint that is fundamentally incompatible with the constitutionally guaranteed right of freedom of expression. By empowering an administrative committee to render a website or application inaccessible upon its own determination of prohibited content, the amendment authorizes the suppression of speech before it occurs, rather than subjecting contested expression to judicial scrutiny. It is submitted in doing so the provision crosses a constitutional line. 68.They also assert that the breadth and vagueness of the terms employed, “unlawful activities,” “religious extremism,” “cultism”, create a chilling effect on legitimate expression. The Petitioners submit that when individuals and digital platforms cannot ascertain with precision what content may trigger a shutdown order, they are likely to self‑censor, withdrawing from lawful discourse out of fear of sanction. This consequently undermines the “vibrant marketplace of ideas essential to democratic self‑governance.” The Petitioners therefore argue that paragraph (ja) imposes a constitutionally impermissible deterrent on protected speech. 69.Measured against Article 24 of the Constitution that sets out the limited grounds upon which a right may be limited it is submitted that the impugned paragraph fails the proportionality test under Article 24 (1). 70.The respondents in response maintain that the impugned limitation is constitutionally permissible under Article 24 and that the section serves a legitimate and compelling state interest the protection of minors from sexual exploitation, the prevention of terrorism and the suppression of unlawful online activities. It is submitted that the limitation is narrowly tailored as the Committee may only act where it is proved, thereby dismissing the Petitioners’ fears of prior restraint and chilling effect. 71.The Provision empowers the committee to determine that a website or application is offensive and then proceed to issue a directive to render the website or application inaccessible. In effect the Committee is given extensive powers to limit Article 32, 33,34 of the Constitution absent of judicial supervision. The respondents urge that the Court can read into the statute that the use of the term ‘proved’ necessarily means that it will be subject to judicial pronouncement. I am not persuaded by this submission because the Act also amended Section 46 of the Principal Act by inserting Section 46A- which provides-46A. (1)Where a person has been convicted of an offence related to promotion of unlawful activities inappropriate sexual content of a minor, terrorism or religious extremism and cultism and the person was using a computer system, website or digital device in contravention of this Act, the court may-(a)order the person to remove the content or materials from the computer system, website or digital device;(b)order the person to close or deactivate the computer system, website or digital device; or(c)make such orders as the court may deem appropriate.(2)Notwithstanding subsection (1), where an authorised person believes that a computer system, website or digital device is being used to promote unlawful activities, inappropriate sexual content of a minor, terrorism or religious extremism and cultism, the authorised person may apply to court for-(a)an order for removal of the content or materials from the computer system, website or digital device;(b)an order for closure or deactivation of the computer system, website or digital device; or(c)such orders as may be necessary 72.The amendment to Section 6 therefore sets up a parallel process to that at Section 46A and allows the Committee to take a drastic measure limiting fundamental rights without judicial scrutiny. In Andare v Attorney General & another; Article 19 – East Africa (Interested Party) [2016] KEHC 7592 (KLR) the Court underscored that Article 24(3) of the Constitution placed a mandatory responsibility on the state to demonstrate that the requirements of Article 24 had been met. In this instance therefore it rested on the respondents to demonstrate that the impugned statute complied with Article 24 (2)(a) that provides-2.Despite clause (1) a provision in legislation limiting a right or fundamental freedom-a.In the case of a provision enacted or amended on or after the effective date is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation. (Emphasis Supplied) 73.Because of the Legislature’s failure to comply with the mandatory constitutional parameters governing the limitation of rights, I have no hesitation in declaring Section 6(1)(ja) of the Computer Misuse and Cybercrimes (Amendment) Act unconstitutional. The impugned provision restricts the freedoms guaranteed under Articles 32, 33 and 34, yet does so in a manner that falls outside the strict confines of Article 24, which demands that any limitation be clear, precise, reasonable, and demonstrably justifiable in an open and democratic society. The State has not discharged its burden to show that the limitation is both necessary, and the least restrictive means available. 74.Further the amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship in the absence of procedural safeguards and evidentiary thresholds. In so doing, the provision invites arbitrary enforcement and produces a chilling effect on legitimate expression, compelling individuals and digital platforms to selfcensor out of fear of sanction. Such anticipatory silence is antithetical to the constitutional commitment to a vibrant and uninhibited marketplace of ideas, which Articles 32, 33 and 34 were crafted to protect. The Court in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR)stated-(126)The key principle emerging from these decisions is that prior judicial authorisation alone may not suffice; adequate supervision and controls are equally important. Big Brother Watch and Others v The United Kingdom (supra) underscores the need for narrowly tailored powers and structured oversight, principles that are equally relevant to the interpretation of the impugned provisions that are the subject of the appeal before us. What also emerges from the reviewed decisions is that even though the surveillance powers of the State are constitutionally permissible, such powers should be exercised within clearly defined and narrowly tailored boundaries surrounded by robust safeguards. These principles resonate with Article 24 of our Constitution, which demands proportionality and justification for any limitation of a right or fundamental freedom. 75.The Petitioners also challenge the Constitutionality of the amendment to Section 27 of the principal Act to provide that(1)A person who, individually or with other persons, willfully communicates, either directly or indirectly, with another person or anyone known to that person commits an offence, if they know or ought to know that their conduct—(b)detrimentally affects that person or is likely to cause that other person to commit suicide. 76.The section is challenged for being vague, overly broad, and lacking objective criteria. In striking down sections 22 and 23 of the Principal Act on identical grounds the Court in Bloggers Association of Kenya (BAKE) v Attorney General & 6 others [2026] KECA 430 (KLR) observed-Our assessment of sections 22 and 23 of the Act is that they are so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens. They are aimed at patrolling the social media space and are likely to net the originators of what is sought to be criminalised, as well as innocent forwarders who may not even be aware that the information they are publishing is false. These provisions are a danger to the social media warriors who are on sentinel duty day and night, forwarding information without even reading what they are forwarding. In a world without universal truths or falsities, the offences may be difficult to prove. 77.The impugned provision falls into the same constitutional infirmity. Section 27(1)(b) now criminalises communication that “is likely to cause the person to commit suicide,” thereby introducing a speculative, indeterminate, and wholly subjective basis for criminal liability. Its standard is untethered from objective criteria and collapses the distinction between demonstrable harm and hypothetical psychological impact. In doing so, it violates the principle of legality under Articles 25(c) and 50(2)(b) of the Constitution, which demand clarity, precision, and foreseeability in criminal norms. Given the severe penalties that attach upon conviction, the Section as amended cannot withstand constitutional scrutiny. 78.In the circumstances, the only proper conclusion is that Section 27(1)(b) of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 is unconstitutional, invalid, and of no legal effect. 79.Although the 2nd and 3rd Petitioner contended that the provisions of the Amended Act are inconsistent with Article 31 of the Constitution and Section 25 and 27 of the Data Protection Act, they did not point out the specific section of the Act and how it contravened the Constitution, on this particular ground therefore the Petition failed the precision test as articulated in the celebrated decision of Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR)-[5]….We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.Arising from (a), (b), (c) above what are the consequential orders 80.For the foregoing reasons, the Consolidated Petitions partially succeed with the following orders.1.Section 6(1)(ja) and Section 27(1)(b) of the Computer Misuse and Cybercrimes (Amendment) Act, 2025, are declared unconstitutional.2.Each party shall bear its own costs. It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.P. M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantLutta SC for 3rd RespondentOgada for 2nd & 3rd PetitionerMutumaBogongo for 1st PetitionerTendwa holding brief for Mutullah for Valerie Omari 6th, 7th & 8th PetitionerSakimpa for 9th PetitionerBarasa for holding brief Nyamodi for 1st & 7th RespondentMbarak for 5th Respondent & 6th Respondent & 7th RespondentMaweu for 1st Interested PartyKaggia for 4th Interested PartySakimpa holding brief for 6th & 7th Interested PartyNyawa for Katiba InstitutePET/E671/2025, E673/2025, E677 / 2025, E 698/2025, E705/2025 & E 716/2025 Page 11 OF 38