A photo of the late teacher and blogger Albert Ojwang pictured on June 8, 2025.
In February 2017, the High Court delivered a landmark decision by quashing criminal defamation under Section 194 of the Penal Code.
The decision was celebrated by Kenyans and human rights advocates as a significant step toward protecting online freedom of expression.
Justice John Mativo, who is now a Court of Appeal judge, observed that the right to free speech includes the ability to publish and circulate ideas, opinions, and views without undue restriction, using any available means of communication.
Justice John Mativo.
The judge clarified that freedom of expression is subject only to restrictions outlined in Article 24 of the Constitution, which must serve the public interest rather than individual reputations.
“Criminal defamation aimed to protect individual interests while the limitations under article 24 of the Constitution of Kenya, 2010 sought to protect public interest as opposed to individual interest,” said Justice Mativo in the judgment.
Criminalising defamation
The judge argued that criminalising defamation, with its severe penalties—arrest, detention, and up to two years’ imprisonment—created a chilling effect on free speech.
“The harmful and undesirable consequences of criminalising defamation, viz the chilling possibilities of arrest, detention and two years’ imprisonment, were manifestly excessive in their effect and unjustifiable in a modern democratic society like Kenya,” said Justice Mativo.
The ruling was seen as a triumph for digital expression, particularly on social media platforms, where Kenyans increasingly voice opinions on governance, politics, and social issues.
However, this victory was short-lived as in 2018, Parliament enacted the Computer Misuse and Cybercrimes Act, introducing over 30 offences related to the use of computer systems and digital devices.
Among the offences is the crime of publishing false information, which critics argued could be used to suppress free speech.
Sponsored by the then National Assembly Leader of Majority Aden Duale, who is now the Health Cabinet Secretary, the Bill was passed by Parliament and signed into law by President Uhuru Kenyatta on May 16, 2018 during his term in office.
The Act’s broad provisions raised immediate concerns among bloggers, journalists, and civil society groups, with critics warning that it risks expanding State surveillance.
The Bloggers Association of Kenya filed a lawsuit challenging several sections, arguing that the law would be used to reintroduce criminal defamation and limit imparting of information and ideas through social media platforms.
But in 2020, High Court Judge James Makau upheld the constitutionality of the Act, dismissing the bloggers association’s petition. The judge observed that the legislation was necessary to protect the public from cyberspace dangers.
“The need to protect the wider public from the dangers in cyberspace outweighs the granting of the petition. Upon examination of the impugned provisions of the Act, I find the same effectively protects the public interest and as such the public interest needs to be held in the highest esteem,” said Justice Makau.
The judge said the State has an obligation to protect private individuals from defamation and the same cannot be allowed in the allegation of exercising any freedom of expression.
The case is pending in the Court of Appeal after petitioners, among them the Bloggers Association, challenged the High Court’s findings.
The Act is now being enforced with significant consequences against individuals who have been slapped with fines, and in some cases, jail terms.
Lawyer Lempaa Suiyanka said the police have used Computer Misuse and Cybercrimes Act, 2018 to re-introduce criminal defamation through the backdoor.
In the case pending in court, the bloggers association challenged the law, arguing that it was a threat to freedom of opinion, freedom of expression and freedom of the media, among other rights.
In another case, a University of Nairobi student, Mr Kevin Ndung’u Kiriga, who is known online as Ikev Ivooke, was fined Sh7.5 million for defaming Mr Bernard Kagia in a social media post. The case was based on allegations of cyber harassment and cyberbullying under the Computer Misuse and Cybercrime Act. The court found his statements constituted cyber harassment under the Act.
The third-year law student was alleged to have published offensive statements questioning Mr Kagia’s family values in his Facebook post.
Last week, the ugly head of the cybercrimes law was in the national headlines over the arrest of teacher and blogger Albert Ojwang, who was transported from Homa Bay to Central Police Station where he died while in custody. He was to be charged over a report filed by the Deputy Inspector-General of Police Mr Eliud Lagat.
The Director of Public Prosecutions said that the case against another blogger — Mr Kelvin Moinde — who was to be charged together with Ojwang, was rejected on grounds of lack of evidence.
Online activist Rose Njeri in court on June 3, 2025.
In another incident, software developer Rose Njeri, 35, was targeted by detectives recently. She is accused of interference with a computer system after allegedly creating a programme that automatically generated and sent mass emails to the official address of the National Assembly Finance Committee. The efforts were allegedly aimed at rejecting the Finance Bill 2025.
Similarly, Mr JK was ordered to pay his former wife, Ms AW, Sh8.5 million for sending an email to her contacts revealing her HIV status and divorce details. He was said to have violated the liberties and right to privacy of Ms AW as protected under the Computer Misuse and Cybercrime Act.
“I find no justification to interfere with the award of damages by the trial court,” said Justice Asenath Ongeri, while upholding the decision.
In Wajir County, Assistant Chief Kalmoi Shale Ahmed was slapped with a 22-year sentence for distributing obscene images of a woman on a WhatsApp group and committing rape.
He was convicted to serve a term of two years for the offence of wrongfully distributing obscene images through a social media platform and 20 years for the rape charge.
Details of the offence were that between March 18 and June 1, 2020 at Arbaquaramso village in Wajir East Sub-County, he distributed obscene and intimate images of Ms KGH through a WhatsApp group known as Adan Faqa in contravention of the said Act.
"From the evidence on record and the victim’s impact statement, the victim’s life and that of her family are shattered. The photographs in social media have far-reaching and immeasurable repercussions on the victim which the court cannot shut its eyes to. Further, the court has considered that the accused held high office in the society, he wields power and authority over the subjects he administers, he fell short of the expectation of a leader and a public servant," said Justice Ali-Aroni (now appellate court judge) said in the verdict dated July 11, 2022.
In Nairobi, lawyer Kelvin Mwaura was charged with cyber harassment in 2023 over emails sent to a former client.
According to the complainant, the lawyer used to be the family's advocate until December 2021 when his services were terminated. This led to the alleged cyberbullying and insults through text messages and email. It is alleged that things escalated in 2023 when he insulted the client through emails. The matter was reported to the police.
Mr Mwaura has begun judicial review proceedings in the High Court against the Director of Public Prosecutions and the Directorate of Criminal Investigations challenging the decision to charge him. The case is pending before Justice John Chigiti.
In Eldoret, Fidel Mbalah escaped a 36-month sentence for sending offensive texts. Justice Reuben Nyakundi reduced his punishment to 17 months’ probation last year after the suspect expressed remorse.
Mr Mbalah had been charged with cyber harassment for sending offending text messages to his female friend. A magistrate’s court had convicted and given him a Sh100, 000 fine or he serves 36 months in prison in default. But in April last year, Justice Nyakundi reduced the punishment.
The Act’s scope extends beyond individuals to corporate and public institutions. In February 2022, Justice Kanyi Kimondo set aside a police warrant to seize devices from Dr William Ndavi, a senior doctor at Kenyatta University Teaching and Referral Hospital, over social media posts.
The court found the warrant lacked sufficient evidence, highlighting concerns about overzealous enforcement.
The search and seizure warrant was issued to Constable Noah Makokha, an officer attached to the DCI, allowing the police to enter the office and home of Mr Ndavi and seize his mobile phones, laptops and desktop for forensic analysis.
According to the affidavit presented to the lower court, the police were investigating publication of false information or cyber harassment.
Senior position
The gist of the case was that a complaint was lodged by Prof Olive Mugenda, the then chair of the board of Kenyatta University Teaching and Referral Hospital, and where Mr Ndavi also held a senior position.
According to Constable Mercy Nyingi, the complaint centred on a document “circulating online malicious, false and defamatory against the staff, members of the board and the hospital”.
The order was executed and the police seized Mr Ndavi's Samsung Galaxy A24 cell phone and a laptop HP Pro Book. The equipment was submitted to the Communication Authority forensic laboratory and printouts extracted.
In Siaya, Mr Michael Oduory was fined Sh20 million for defaming North Uyoma MCA Washington Oyoma alias Dasani, in 2022.
The MCA complained that the offending publications were further circulated to other to unquantifiable Facebook users by virtue of their being shared, quoted or liked onto other Facebook timelines.
Mr Ochieng said that the Facebook account used for defamation, as alleged by the MCA, was not his and that the comments made might have been from a political rival and not from him.
But Justice David Kemei, in the judgement dated March 27, 2025, ruled that the defence was a mere denial and had not even pleaded a defence of justification to the alleged defamatory words.
"In the absence of such averment by the defendant, the plaintiff’s claim as pleaded stands proved. Further, the said documentary evidence presented by the plaintiff has not been shaken at all by the defendant who has offered no evidence in rebuttal," said the judge.
In Eldoret, Mishak Kimtai, a student at Kabianga University was fined Sh1.8 million in 2023 for unauthorised access to the Moi Teaching and Referral Hospital’s website, a conviction upheld on appeal.
The offence was found to be contrary to Section 14 of the Computer Misuse and Cybercrimes Act.
His appeal against the sentence was rejected by Justice Wananda Aduro.
The court heard that the safety of their confidential medical records had been threatened by the acts of the accused.
It was also submitted that though the Act recommends the maximum sentence for the sentence as Sh5 million fine or three years imprisonment, the accused was handed Sh1.8 million or two years.
