Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E016 OF 2023
BETWEEN
KATIBA INSTITUTE……..…………....…....……………..….1st PETITIONER
LAW SOCIETY OF KENYA……..……………..………..…..2nd PETITIONER
INTERNATIONAL COMMISSION OF JURISTS…..…..…..3rd PETITIONER
BLOGGERS ASSOCIATION OF KENYA…….…..………..4th PETITIONER
KENYA UNION OF JOURNALISTS..... …….…..……….....5th PETITIONER
AFRICA CENTER FOR OPEN GOVERNANCE. …….……6th PETITIONER
ARTICLE 19: Global Campaign for Free Expression
(ARTICLE 19 EAST AFRICA)..................…….…..………..7th PETITIONER
KENYA HUMAN RIGHTS COMMISSION…….…..………..8th PETITIONER
TRIBELESS YOUTH…….…..………………………………..9th PETITIONER

-Versus-
THE DIRECTOR OF PUBLIC PROSECUTIONS ………1ST RESPONDENT
THE INSPECTOR GENERAL OF POLICE…...………...2ND RESPONDENT
THE ATTORNEY GENERAL …….…….....…………......3RD RESPONDENT
-AND-
JOSHUA OTIENO AYIKA……………………………..INTERESTED PARTY
JUDGMENT

Background
1. On the 16th July 2022 the Interested Party, Joshua Otieno Ayika, using
his verified Twitter/X Handle Account @Ayika_joshua posted the
following message;

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

"I am not a prophet, neither am I a soothsayer but get it from

me, in between Wednesday - Friday next week, we might
have the army taking over from this "Biblical Regime'".
Prepare for an army to take over government for the next 90
days then we shall have elections"

2. The aforesaid words as are contained in a “tweet”, that gave rise to, the
Chief Magistrate Court at Makadara, Criminal Case No. E4457 of
2023 - Republic v Joshua Otieno Ayika whereby the Interested Party
was arrested on 21st July 2023 and arraigned and charged on 24th July
2023, with “Subversive Activities” contrary to Section 77 (1) (a) of the
Penal Code, Cap 63.

3. The Interested Party was also charged on the second count with
“Publication of false information” contrary to section 23 of the Computer
Misuse and Cyber Crimes Act, 2018.

4. It was the 1st & 2nd Respondents contention as particularized on the

interested party’s charge-sheet, that the words were prejudicial to the
public order and security of Kenya and Which information was
calculated to cause panic and chaos among citizens of the Republic
of Kenya.

5. This petition questions the constitutional validity of section 77 of the Penal

Code, Cap 63. Petitioners question the place, in a modern democratic
state like Kenya, of a colonial legacy which limits freedom of expression
through the vaguely worded offence of subversion. Petitioners submit
that the offence of "subversion" under section 77 violates Article 1, 2, 33,
and 50(2) (n) of the Constitution.

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6. Feeling, aggrieved by the eminent threat of this criminal provision to

bloggers, journalists and online activists, the Petitioners challenged the
constitutional validity of section 77 of the Penal Code by this petition
dated 6th August 2023 and filed 8th August 2023.

7. Katiba Institute, the 1st Petitioner, is a constitutional research, policy,

and Litigation institute formed to further the implementation of Kenya's
2010 Constitution.

8. Law Society of Kenya, the 2nd Petitioner, is Kenya's premier bar

association, a statutory body with membership of all practicing
advocates. It has the mandate to advise and assist members of the legal
profession, the government and the larger public in matters relating to the
administration of justice in Kenya.

9. International Commission of Jurists-Kenya (ICJ-Kenya) the 3rd

Petitioner, is an international, nonpartisan, and non-profit registered
professional society with long-established and well-recognized expertise
in the rule of law.

10. Blogger Association of Kenya, the 4th Petitioner Is a community

organization representing Kenyan online content creators and empowers
online content creators to improve the quality of content created on the
web.

11. Kenya Union of Journalists, the 5th Petitioner, seeks to improve the
working of conditions of journalists. With membership from freelances,
writers and reporters, editors, sub-editors, and photographers drawn
from broadcast, print and online, the organization protects and promote

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media freedom, professionalism, and ethical standards in the media

industry.

12. Africa Center for Open Governance (AFRICOG), the 6th Petitioner,
is an independent non-profit organization. They provide cutting edge
research and monitoring on governance and public ethics issues in both
the public and private sectors. They aim to address the structural causes
of the crisis of governance in East Africa.

13. Article 19 East Africa,7th Petitioner, is duly registered under the Non-
Governmental Organizations Coordination Act as a non-governmental
organization in Kenya working to promote and protect freedom of
expression and access to information media freedom, and attendant
rights in Eastern Africa. both offline and online and contributes to
protecting and promoting these rights and freedom by focusing on four
thematic areas of Digital Rights, Media Freedom, Civic Space
Transparency, and Protection.

14. Kenya Human Rights Commission (KHRC), 8th Petitioner, is a non-

governmental Organization whose objective include promoting human
rights and fundamental freedoms, good governance, and democracy.

15. Tribeless Youth, the 9th Petitioner, is a legal resident of Nakuru

County and a youth initiative established in 2016 to promote peaceful
coexistence among the youth in Kenya.

16. Director of Public Prosecutions, the 1st Respondent, is a

constitutional office established by Article 157 of the Constitution of
Kenya, 2010 with the responsibility for public prosecution of criminal
offences in Kenya.

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17. Inspector General of National Police, the 2nd Respondent, is a

constitutional office established under Article 245 of the Constitution of
Kenya, 2010 and mandated to superintend the investigation of offences
or to enforce the law against any person or persons.

18. Attorney General, the 3rd Respondent, is a constitutional office

created under Article 156 of the Constitution and sued in these
proceedings as principal legal advisor to the Government.

19. Otieno Ayika, the Interested party is a lawyer charged with the
offence of subversive activities contrary to section 77 (1) (a) of the Penal
Code Cap 63 in Makadara Chief Magistrate Criminal Case E4457 of 2023
Republic v Joshua Otieno Ayika.

20. The Petitioners crave under Article 23 for the following relief(s);

(i) A declaration be and is issued that, section 77 (1) and (3)(a), (b),
(c), (d), (e), (f), and (g) of the Penal Code, Cap 63 is
unconstitutional;
(ii) A declaration be and is issued that, the continued enforcement of
section 77 (1) and (3)(a), (b), (c), (d), (c), (e) (f), and (g) of the Penal
Code by the Respondents against the Interested party or any
member of the public is unconstitutional.
(iii) An order of prohibition be and is issued restraining the
Respondents from enforcing section 77 (1) and (3) (a), (b), (c), (d)
(e) (f) and (g) of the Penal Code, Cap 63 in Makadara Chief
Magistrates Court Criminal Case E4457 of 2023 - Republic Joshua
Otieno Ayika, or in any other matter in any subordinate court within
the Republic of Kenya;

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(iv) A costs order to deter future violation of the freedom of

expression by the Respondents.

21. This matter came up before court on the 13th October 2023 whereby
counsel for the Petitioner sought the court’s leave to abandon an
interlocutory Application for conservatory Orders to argue the main
Petition, a request conceded to, by Ms. J. Chepkurui Senior State
Counsel. The Court thus issued directions including the Petition being
heard and determined by way of written submissions and parties ware
afforded timelines to comply

22. On the 17th November 2023, the matter was mentioned to determine
compliance by the parties and fix judgment date. The 1st and the 3rd
Respondent filed their written submissions on the 16th November 2023
while Petitioners ultimately filed their written submissions on the 30th
November 2023.

Case for the Petitioners

23. That the Preamble to the Constitution of Kenya, 2010 bespeaks the
aspiration of Kenyans for a government based on the essential values of
human rights, democracy and the rule of law. Under Article 2, the
Constitution is the supreme law and it binds all persons and all State
organs at both levels of government.

24. In addition, no person may claim or exercise State authority unless

authorized under the Constitution. Ultimately, any law that conflicts with
the Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.

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25. That the Impugned Section 77 of the Penal Code provides that;
(1) Any person who does or attempts to do, or makes any
preparation to do, or conspires with any person to do, any act
with a subversive intention, or utters any words with a
subversive intention, is guilty of an offence and is liable to
imprisonment for a term not exceeding seven years.

(2) (Repealed by Act 5 of 2003, s. 9.)

(3) For the purposes of this section, “subversive” means –

a. supporting, propagating (otherwise than with intent to attempt
to procure by lawful means, the alteration, correction, defeat,
avoidance or punishment thereof) or advocating any act or thing
prejudicial to public order, the security of Kenya or the
administration of justice;
b. inciting to violence or other disorder or crime, or counselling
defiance of or disobedience to the law or lawful authority;
c. intended or calculated to support or assist or benefit, in or in
relation to such acts or intended acts as are hereinafter
described, persons who act, intend to act or have acted in a
manner prejudicial to public order of the security of Kenya
or the administration of justice, or who incite, intend to incite
or have incited to violence or other disorder or crime, or who
counsel, intend to counsel or have counselled defiance of or
disobedience to the law or lawful authority;

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d. indicating, expressly or by implication, any connection,

association or affiliation with, or support for, any unlawful
society;
e. intended or calculated to promote feelings of hatred or enmity
between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to
comments or criticisms made in good faith and with a view to the
removal of any causes of hatred or enmity between races or
communities;
f. intended or calculated to bring into hatred or contempt or to
excite disaffection against any public officer, or any class of
public officers, in the execution of his or their duties, or any naval,
military or air force or the National Youth Service for the time
being lawfully in Kenya or any officer or member of any such
force in the execution of his duties: Provided that the provisions
of this paragraph do not extend to comments or criticisms made
in good faith and with a view to the remedying or correction of
errors, defects or misconduct on the part of any such public
officer, force or officer or member thereof as aforesaid and
without attempting to bring into hatred or contempt, or to excite
disaffection against, any such person or force; or
g. intended or calculated to seduce from his allegiance or duty any
public officer or any officer or member of any naval, military or air
force or the National Youth Service for the time being lawfully in
Kenya.

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26. That from the respective parties' cases the following five (5) issues
emerge:
a) What is the normative content and importance of freedom
of expression in a democracy?
b) Does section 77 of the Penal Code limit the freedom of
expression under Articles 33 (1).
c) Is the limitation of freedom of expression by section 77 a
limitation by law"?
d) Is the limitation of freedom of expression by section 77
serve a legitimate aim"?
e) Is the limitation of freedom of expression by section 77
necessary" in an open and democratic society?
f) What are the appropriate reliefs in this Petition?

27. With Regards to the 1st issue the Petitioners submit that, the normative
content of freedom of expression and its importance in a democracy flows
from the Constitution of Kenya and international human rights law and in
assessing whether the limitation of a right was reasonable and justifiable,
a Court should consider the nature of the right, the importance of the
purpose of the limitation, the nature and extent of the limitation, and the
fact that the need for enjoyment of the right by one individual did not
prejudice the rights of others, as well the consideration of the relationship
between the limitation and its purpose, and whether there were less
restrictive means to achieve that purpose. The Supreme Court, Karen
Njeri Kandie v Alassane Ba & Another (2017] EKLR

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28. That Kenya is a state party to the International Covenant on Civil

and Political Rights (the "ICCPR") whose Article 19 entitles everyone
to;
"freedom to seek, receive and impart information and ideas
of all kinds, regardless of frontiers, either orally, in writing
or in print, in the form of art, or through any other media of
his choice".
29. Article 9 of the African Charter on Human and Peoples' Rights (the
"African Charter") entitles every individual to "right to receive
information" and to express and disseminate his opinions within the
law". Under Article 2(6) both treaties form part of the laws of Kenya.

30. In this regard, Kenya has an obligation under Article 21(1) to observe,
respect, protect promote and fulfil the right to freedom of expression
secured by Article 35(1) when includes:
a. freedom to seek, receive or impart information or ideas;
b. freedom of artistic creativity; and
c. academic freedom and freedom of scientific research.

31. Kenya firstly a democratic state with a democratically elected

leadership and it must therefore be appreciated that it is only through
criticism that citizens make their leaders know when their actions may not
be in the interest of the nation. Such criticism then helps public officers
understand the feelings of the citizens. Citizens cannot be freely
expressing themselves if they do not criticize or comment about their
leaders and public officers. Free speech is the last bastion against

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irresponsible governments in which politicians tend to wield inordinate

power and influence to silence their critics.

32. Indeed, one can say that the most heinous crimes against citizens
have been committed by politicians because their baseness and
perversity were hidden from the public scrutiny. In this regard, this court
is invited to take judicial notice of the fact that, “excesses of the state that
were experienced during the repressive years of single party regime were
perpetuated by the outright muzzling of the freedom of expression in
order to Suppress dissent by the citizens". Cyprian Andama v Director
of Public Prosecution & Another Article 19 East Africa (Interested
Party) [2019] eKLR

33. On the second issue as to whether section 77 of the Penal Code limits
freedom of expression? The Petitioners submit that, no one can
reasonably deny that Section 77 of the Penal Code impairs freedom of
expression by criminalizing and punishing “any person” “who utters” “any
words” with a “subversive intention".

34. For good reason, Respondents do not deny that section 77 of the Penal
Code limits freedom of expression under Article 33. From the record, for
his speech, Ayika, the Interested Party has been investigated, arrested,
charged, and is being prosecuted. If convicted he would be liable to
imprisonment for a term not exceeding seven (7) years.

35. The Petitioners concede that, the right to freedom of expression is not
absolute. However, freedom of expression is limited under Article 33(2)
to: propaganda for war, incitement to violence, hate speech, or advocacy
of hatred under Article 33(2) (d). Therefore, by its purpose and effect,

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section 77 of the Penal Code limits freedom of expression and is

unconstitutional unless proved to be reasonable and justifiable.

36. As to whether the limitation of the freedom of expression by

section 77 is either "reasonable" nor "justifiable" in an open and
democratic society? The Petitioners maintain that, having found that
Section 77 of the Penal Code limits freedom of expression under Article
33, the court must then conduct the three-part test required by Article 24.
As to whether Section 77 of the Penal Code: is provided by law, pursues
a legitimate aim, and is strictly necessary in an open and democratic
society.

37. Under Article 24(3) the onus of proving that a limitation on a right or
freedom is reasonable and demonstrably justified in an open and
democratic society lies on the Respondents. Robert Alai v Attorney
General (2017] eKLR at para 56; Rv Oakes [1986] 1 SCR 103.

38. The Respondents bear the burden of satisfying this court that Section
77 of the Penal Code is not "provided by law"; (i) serves a legitimate aim;
and is it necessary in an open and democratic society. However, section
77 does not meet any of the three core tests:

“it is vague and cannot amount to a law; it does not serve any
legitimate aim; and it is overbroad and not the least restrictive
measure hence is not necessary in an open and democratic
society”.

39. As to whether the limitation in section 77 of the Penal Code is

“provided by law”? The Petitioners contend that, the principle of legality

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in Article 50(2) (n) requires that a criminal law especially one that limits a
fundamental right and freedom must be clear enough to be understood
and must be precise enough to cover only the activities connected to the
law's purpose.

40. Secondly General Comment No. 34 on Article 19; Freedoms of

Opinion and Expression at para 25 explains that a limitation "provided
by law", requires that the measure be imposed pursuant to a law that
(i) is accessible to the public,
(ii) is formulated with sufficient precision to
enable an individual to regulate his or her
conduct accordingly, and
(iii) provides adequate safeguards against
unfettered discretion.
41. That for a norm to be characterized as law, it must be formulated with
sufficient precision, so that an accused person can know exactly, what
conduct would attract criminal Sanctions, that vagueness attracts
arbitrariness thereby leaving an accused person at the mercy of the
Director of Public Prosecutions or the court's subjective interpretation.

42. Against this background, the Petitioners posit that, the limitation in
section 77 of the Penal Code is not "provided by law". The section is
vague and over-broad especially about the meaning of "prejudicial to
public order, security of Kenya and administration of justice", "in defiance
of or disobedience to the law and lawful authority; unlawful society" or
"hatred or contempt or excite disaffection against any public officer or any

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class of public officer". None of the terms used in the offence are defined
or capable of precise or objective legal definition or understanding.

43. Consequently, innocent persons are roped in, as well as those who are
not. Persons, including the interested party, are not told clearly on which
side of the line they fall enabling the authorities to be as arbitrary and as
whimsical as they like in booking government critics under Section 77 of
the Penal Code.

44. The principle of legality, that a vague norm cannot be regarded as law,
is well settled by a long line of authorities from this court. A law which
creates a criminal offence, should be clear, concise, and unambiguous.
Andama v Director of Public Prosecutions (2021] KEHC 12538
(KLR). Instead, legislation ought not to be too vague that the subjects
must await the interpretation given to it by the judges before they can
know what is and what is not prohibited. Aids Law Project v Attorney
General (2015] eKLR at para 67. Criminal law should not be so widely
and vaguely worded that it nets anyone who may not have intended to
commit what is criminalized by the section. Cyprian Andama v Director
of Public Prosecution & another; Article 19 East Africa (Interested
Party) [2019) eKLR.

45. Vagueness is why this court in Andare v Attorney General (2015]

eKLR nullified section 29 of the Kenya Information and Communications
Act and why in Robert Alai v Attorney General (2017) eKLR at para 56
this court found section 132 of the Penal Code unconstitutional.

46. Recently, in National Assembly v Katiba Institute & 6 others (Civil

Appeal 243 of 2018) [2023] KECA 1174 (KLR) (6 October 2023)

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Judgment) (citing Grayned v Rockford 408 U.S. 104 |1972) the Court
of Appeal explained that

"vague laws may trap the innocent by not providing fair

warning, Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law
impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and
discriminatory application".

47. Besides, vague legislation offending the principle of legality in Article

50(2) (n), a core part of the absolute right to fair trial, yet section 77 of the
Penal Code has a chilling effect on the public's right to freedom of
expression that guarantees the freedom to seek, receive or impart
information or ideas. The section therefore ropes in all information
deemed to be subversive notwithstanding its artistic, academic, political,
or scientific value. It also serves the purpose of silencing critics of
government from expressions their opinions, fears, frustrations, desires,
imaginations, and facts.

48. Petitioners submit that once the court determines that a limitation in
criminal legislation is not provided by law, then that should be the end of
the Article 24 analysis. All the three components are conjunctive.

49. As to whether the limitation of freedom of expression by section

77 of the Penal Code does not pursue a "legitimate aim" under

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Article 33(2)? The Petitioners submit that in the case of Robert Alai v
Attorney General [2017| eKLR at para 50 and 55 citing Thulah Maseko
v The Prime Minister of Swaziland (2016] SZHCn 180 it was held that
it is the duty of the respondents to produce legal argument, requisite
factual material and policy Considerations to show that a limitation of a
fundamental freedom is justified:

If the government wishes to defend the particular enactment, it

then has the opportunity-indeed an obligation-to do so. The
obligation includes not only the submission of legal argument but
the placing before court of the requisite factual material and polio
Considerations. The respondents have been found woefully
wanting on this front. They have not submitted any evidence or
material of whatever nature in justification of the limitation in
question. That being the case, the conclusion is, in my view,
inescapable that the respondent have failed to satisfy this court
that the restrictions and limitations imposed on the applicants'
Freedom of speech or expression are either reasonable or
justifiable. Besides, the deeming provisions of subsection 3 of
section3 are plainly contrary to the constitutionally entrenched
right of being presumed innocent until proven otherwise."

50. Article 33(2) is a self-contained provision providing both the normative

content as well as the limitations to the right to freedom of expression on
four grounds – propaganda for war, incitement to violence, hate speech,
or advocacy of hatred under Article 33(2)(d). (See Coalition for Reforms
& Democracy v Republic of Kenya [2015] eKLR; Andare v AG [2016]
eKLR).

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51. Therefore, by criminalizing the 'uttering' of any 'words' with a

'subversive intention', section 77 limits the freedom of expression - on
grounds alien to Article 33(2) and the inevitable conclusion in so far as
the impugned section 77 is divorced from Article 33(2), it does not serve
any legitimate aim.

52. That, the Respondents might submit that section 77 of the Penal Code
is necessary for the protection of others reputation, and for their
protection from “hate speech", and from "advocacy of hatred which
constitutes ethnic incitement, vilification of others or incitement to cause
harm, or advocacy based on any ground of discrimination specified or
contemplated under Article 27(4)".

53. The reality is that reputation of others is protected by the Defamation

Act, Cap while hate speech and advocacy of hatred are the subject of the
National Cohesion and Integration Act, 2008.

54. That, the section also bears no relation whatsoever to Article 19 of the
ICCPR and Article 27(2) of the African Charter. Here, the Respondents
were expected to demonstrate in response that, section 77 (1), 3(a), (b),
(c), (d) (f) and (g) Penal Code, Cap 63 pursues a "legitimate aim" in line
with Article 33(2) of the Constitution. The Respondents have failed to
strictly prove, by legal argument, requisite factual material and policy
considerations that section 77 of the Penal Code pursues any
“legitimate aim" they have failed.

55. As to whether Section 77 of the Penal Code is not strictly "necessary "
in an open and democratic society and if there are other least restrictive

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measures? The Petitioners are of the view that, Article 24(1) requires a
proportionality analysis that inter alia takes into account the nature of the
right or fundamental freedom; the importance of the purpose of the
limitation; the nature and extent of the limitation; the need to ensure that
the enjoyment of rights and fundamental freedoms by any individual does
not prejudice the rights and fundamental freedoms of others; and the
relation between the limitation and its purpose and whether there are less
restrictive means to achieve the purpose.

56. There are in fact less restrictive means to achieve the reputation-
protection purpose through civil claims under the Defamation Act, Cap
36. The use of criminal penalties not only imposes a criminal sanction
where a civil remedy suffices, but also has a chilling effect on the
Petitioner and the public's right to seek or receive information or ideas
under Article 35. As a result, the disadvantages of the use of a criminal
sanction in section 77 are not proportionate to or absolutely necessary to
achieve the purpose of protecting reputations.

57. That the principle of proportionality requires that even if the state is
concerned with a legitimate aim, it should adopt measures which are
proportionate to that objective. That in the case of Jacqueline Okuta v
Attorney General [2017] eKLR this court crystallized the following four
sub-components of proportionality, holding that a limitation of a
constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation
are rationally connected to the fulfillment of that purpose;

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(iii) the measures undertaken are necessary in that there

are no alternative measures that may similarly achieve
that same purpose with a lesser degree of limitation; and
(iv) there is a proper relation ("proportionality stricto
sensu" or "balancing") between the importance of
achieving the proper purpose and the special importance
of preventing the limitation on the constitutional right

58. That in the Okuta Case, this court found that defamation of a private
person by another person cannot be regarded as a 'crime' under the
constitutional framework and hence, what is permissible is the civil wrong
and the remedy under the civil law.

59. Similarly, while nullifying section 29 of KICA in Andare, this court

reached the same conclusion on the efficacy of civil remedies:

“the respondents i.e. [the State] were under a duty to

demonstrate that the provisions of section 29 were permissible
in a free and democratic society. They were also under a duty to
demonstrate the relationship between the limitation and its
purpose, and to show that there were no less restrictive means
to achieve the purpose intended. They have not done this."

60. Comparatively, the African Commission on Human and Peoples'

Rights, in Zimbabwe Lawyers for Human Rights & Associated
Newspapers of Zimbabwe v Zimbabwe Communication No. 284/03
set out the following questions relevant to determining if a measure such
as section 77 is proportionate:
(i) Were there sufficient reasons supporting the action?

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(ii) Was there a less restrictive alternative?

(iii) Was the decision-making process procedurally fair?
(iv) Were there any safeguards against abuse?
(v) Does the action destroy the very essence of the Charter
rights in issue?"

61. Also, in the Canadian case of R v Oakes [1986] 1 SCR 103 the
Supreme Court of Canada identified three elements to the test of
proportionality as follows:
(i) The measures adopted must be carefully designed to achieve the
objective in question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally connected
to the objective (the suitability criteria);

(ii) The means, even if rationally connected to the objective, should

impair "as little as possible" the right or freedom in question (the
necessity criteria); and

(iii) There must be a proportionality between the effects of the

measures which are responsible for limiting the right or freedom,
and the objective which has been identified (the proportionality
sensu stricto criteria)

62. In the ultimate analysis, assuming there were a credible relation

between limitation of speech through section 77 of the Penal Code and
the protection of others reputation, the state in pursuing that objective
has used means which are not proportional to, that objective. There are
not only less restrictive measures, but also section 77 of the Penal Code
lacks a mens rea and is therefore vague and overbroad as to impair the
freedom of expression more than necessary.

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63. Further, the state has failed to show how a penal sanction, is a
necessary and proportionate limitation to freedom of expression in the
circumstances of this petition.

64. Although section 77 was amended in 2003, it was enacted during the
colonial period and was meant to stifle dissent against the colonial rulers.
Secondly, the Kenyan law on subversion" has its roots in colonial-era law
against sedition and similar activities.

65. Many of sedition-type laws in use in Africa today are relics of

colonialism that were originally introduced to buttress colonial rule and
repress demands for national self- determination and independence.

66. For instance, much of the language in section 77 of the Kenyan Penal
Code can be found in Swaziland's Sedition and Subversive Activities At
1938, which was declared unconstitutional in Thulah Maseko v The
Prime Minister of Swaziland [2016] SZHCn 180; and also, in sections
39 (1) (a) and 40 of the Ugandan Penal Code declared unlawful in
Andrew Mujuni Mwenda v Attorney General [2010) UGCC 5

67. In State v Ivory Trumpet Publishing Co Ltd, [1984] 5 NCLR 73 the

Nigerian High Court considered whether punishing the defendant for
having exercised his right to freedom of expression to criticize the
Governor of Anambra State of Nigeria was reasonably justifiable in a
democratic society in the interests of public safety or public order. The
High Court adverted to the history of the section, holding:

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

any law which penalises any person for making such publication
[...] concerning the person of a Governor of a State in Nigeria is
not reasonably justifiable in a democratic society in the interests
of public order or safety."

68. Again, the Nigerian Federal Court of Appeal followed this reasoning in
the case of Nwankwo v State [1983]1 NGR 336 where the appellant had
been charged over a book he had written which was allegedly seditious
against the Governor and Government of Anambra State. The Federal
Court of Appeal considered sections 50 (2), 51 and 52 of the Nigerian
Criminal Code inconsistent with the provisions of the 1979 Constitution
that recognized the right to freedom of expression, since the President
and Governors were elected politicians:

Those in public office should not be intolerant of criticism.

Where a writer exceeds the bounds there should be a
resort to the law of libel where the plaintiff must of necessity
put his character and reputation in issue. Criticism is
indispensable in a free society:"

69. That, in Canada, Section 59 and 60 and of the Canadian Criminal Code
has not been applied in over half a century since the landmark case of
Boucher v R [1951] S.C.R. 265 before the Supreme Court of Canada in
1951. In this case, the Supreme Court considered the history of the law
of sedition and reasoned that, up to the end of the 18th Century it was, in
essence, “a contempt in words of political authority or the actions of
authority. If we conceive of the governors of society as superior beings,
exercising a divine mandate, by whom laws, institutions and
administrations are given to men to be obeyed, who are, in short, beyond

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

criticism, reflection or censure upon them or what they do implies either

an equality with them or an accountability by them, both equally
offensive."

70. However, the Supreme Court of Canada noted that since governments
are now democratically elected, they are accountable to the public for
their actions. This has had an impact on the offence of seditious libel,
which now required a direct incitement to disorder and violence. Then the
law was further developed to include a requirement that there be
"seditious intention". The Supreme Court further reasoned that:

[there is no modern authority which holds that the mere effect of

tending to create discontent or disaffection among His Majesty's
subjects or ill-will or hostility between groups of them, but not
tending to issue in illegal conduct, constitutes the crime, and this
is for obvious reasons. Freedom in thought and speech and
disagreement in ideas and beliefs, on every conceivable subject,
are of the essence of our life."

71. That, the court should therefore find and hold that section 77 of the
Penal Code is not necessary in an open and democratic society. The
section is not carefully designed or narrowly drafted to achieve any
“legitimate aim'" under Article 33(2), Article 193) of the ICCPR, or Article
9 and 27(2) of the Banjul Charter.

72. That, the offence of "subversion" is unnecessary in a modern,

democratic society. It is an antiquated means of suppressing and
penalizing expression of political dissent, which amount to a violation of
the right to freedom of expression under international law.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

73. That, the prosecution of the interested party, whose political

expression is strongly protected under Article 33 and international law
demonstrates that this law is drafted in such a way that allows for the
suppression of speech that is critical of those in power. Such law inhibits
and curtail speech that underpins and strengthens a democratic society.

74. Petitioners beseech the court to allow the petition as prayed and to
grant the following orders:
(i) A Declaration be and is hereby issued that, Section 77 (1) and
(3)(a), (b), (c), (d) (e) (f) and (g) of the Penal Code, Cap 63
Laws of Kenya are unconstitutional;
(ii) A Declaration that, the continued enforcement of section 77
(1) and (3) (a), (b), (c), (d) (e) (f) and (g) of the Penal Code by
the Respondents against the Interested party or any member
of the public is unconstitutional;
(iii) An order of prohibition be and is hereby issued restraining
the Respondents from enforcing section 77(1) and 3 (a), (b),
(c), (d), (c), (f) and (g) of the Penal Code Cap 63 in Makadara
Chief Magistrate's Criminal Case No. E4457 of 2023;
Republic vs. Joshua Otieno Ayİka or in any other matter in
any subordinate court within the Republic of Kenya
(iv) A cost order to deter future violation of freedom of
expression by the Respondents

Case for the 2nd and 3rd Respondents

75. The 2nd and 3rd Respondents, the Inspector General of Police and the
Director of Public Prosecutions, opposed the Petition by filing “Grounds

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

of Opposition” dated 14th August 2023 and written submissions dated 3rd
November 2023 and Ms. J. Chepkurui Senior State Counsel argued their
joint case.

76. The 2nd and 3rd Respondents, premise their opposition on the following
grounds;
i. That the instant petition and application does not meet the
threshold of specificity of the actual violation to warrant the
orders sought as set out in the case of Mumo Matemu Vs
Trusted Society of Human Rights Alliance & Others,
Caca 290 of 2012 (2012 Eklr And Anarita Karimi Njeru
Vs Republic (1967-80)) KIr 1272, in which it was held as
follows: “However, our analysis cannot end at the level of
generality. It was the High Court 's observation that the
petition before it was nor the epitome of precise,
comprehensive or elegant drafting. Yet the principles of
Anarita Karimi Njeru underscore the importance of defining
the dispute to be decided by court".

ii. That the offense in which the interested party is charged

with in Makadara Chief Magistrates Court Criminal
Case No. E4457 of 2023 is an offence recognized in law
under Section 77 of the Penal Code hence the same
should be allowed to proceed to its logical conclusion.
iii. That the instant petition and application offends the
provisions of Article 169 of the Constitution and Section 6
of the Magistrates Courts Act no 6 of 2015 which
establishes the Magistrates Court and gives it jurisdiction
to hear and determine such matters.
iv. That the instant application does not meet the
requirements for the grant of conservatory orders as was
established by the Supreme Court in Gatirau Peter Munya
v Dickson Mwenda Kithinji & 2 others [2014] eKLR.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

v. That it is general principle that there is a rebuttable

presumption that legislation is constitutional hence the
onus of rebutting the presumption rests on those who
challenge the legislation's status. The petition does not
raise any ground of illegality of the Section.

77. That, Section 77 states that, any person who does or attempts to do or
makes any preparations to do or conspires with any person to do any act
with a subversive intention. or utters any words with a subversive
intention, is guilty of an offence and is liable to imprisonment for a term
not exceeding seven years.

78. That Subversive has been defined under Sub-section 3 to mean

supporting, propagating (otherwise with an intent to procure by lawful
means the alteration, correction, defeat, avoidance or punishment
thereof) or advocating any act or thing prejudicial to public order, the
security of Kenya or the administration of justice, or who incite,
intend to incite or have incited to violence or other disorder or
crime. This Section is specific, clear and free from ambiguity.

79. That Article 33(2) limits the right to freedom of expression as the same
does not extend to propaganda for war, incitement to violence, hate
speech or advocacy of hatred. The interested applicant's tweet was
meant to incite violence.

80. That it is in public interest that this petition and application be dismissed
with cost to the 2nd and 3rd Respondents.

81. That the section enables the state to penalize journalists, bloggers for
opinions or views. broadcast, publications contrary to Article 34(2)(b).

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

82. That the petitioner contends that, Section 77 is not a

reasonable/justifiable limitation of the freedoms of expressions in an
open and democratic society based on human dignity, equality and
freedom under Article 24 the 2nd and 3rd Respondents, rely on the
grounds of opposition dated 14.8.2023 in opposing the instant petition,
submitting that, the petition is frivolous, mischievous and an abuse of
court process.

83. That, Section 77 of the Penal Code is Constitutional and thus the reliefs
sought ought not to be granted. That the sovereignty and dignity of the
people of Kenya must be respected and Kenya's security protected.

84. That “Subversion” has been defined as “an attempt to overthrow a

government that has been legally established”. Section 77 defines
subversive activities as:
"any person who does or attempts to do or makes any
preparations to do or conspires with any person to do any
act with a subversive intention, or utters any words with a
subversive intention, is guilty of an offence and is liable to
imprisonment for a term not exceeding seven years.

85. That the interested party has been charged, with the offense of
subversion under Section 77 of the Penal Code, in Makadara Chief
Magistrate's Court Criminal Case No E4457. The Same is on-going.

86. It is the 2nd and 3rd Respondents, submission that, the criminal case
should proceed to full hearing and a judgement delivered. The petitioner
should not be allowed to use the instant petition as a leeway to escape

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

punishment for his action’s utterances. The 2nd and 3rd Respondents,
submit on the following grounds:
(i) Whether subversion is incompatible with the sovereignty
of the people of Kenya because it shields the government
and public officers from criticism?
(ii) Whether Section 77 of the Penal Code is unconstitutional
for violating the right to freedom of expression to an
individual or journalist/bloggers?
(iii) Whether the section is a reasonable or justifiable
limitation of the freedom of expression under Article 24
of the Constitution?
(iv) Whether the Section offends the principle of legality in
Article 50(2) (n) of the Constitution. The police should be
allowed to conduct their duties? and
(v) Who should bear the costs of this suit?

87. On the 1st issue as to Whether subversion is incompatible with the

sovereignty of the people of Kenya because it shields the government
and public officers from criticism. The 2nd and 3rd Respondents submit
that, Article 1 of the Constitution guarantees the sovereignty of the people
of Kenya. This article also protects the security of Kenyans.

88. That Section 77 was enacted by the Republic of Kenya in its legislative
sovereignty and it is the 2nd and 3rd Respondents submission that, the
section was enacted to cushion against activities that would interfere with
the Kenyan security. In the instant case, the tweet by the interested party
was, and is, a security threat. That, the allegation that the offence of

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

subversion is incompatible with the sovereignty of Kenyans should be

disregarded.

89. Reference is made to the case of Dari Limited & 5 others v East
African Development Bank (Civil Appeal 70 of 2020) (2023] KECA
454 (KLR) (20 April 2023) in which j k. M'inoti, Dr. K. I. Laibuta and judge
M. Gachoka stated as follows:

"in the particular context of this appeal, we do not appreciate how

recognition and enforcement of a foreign judgment from a
reciprocating state can be deemed a diminution of sovereignty.
On the contrary, the Act was passed by the Republic of Kenya in
exercise of its legislative sovereignty. The country decided, in
exercise of that sovereignty, to recognize and enforce judgments
of superior courts of other sovereign states that have
reciprocated in recognizing and enforcing judgments from
superior courts of Kenya. Rather than being an erosion of
sovereignty, in our view, the enactment of the Act by the Republic
of Kenya was an incident, a manifestation of sovereignty".

90. On the 2nd and 3rd issue as to whether Section 77 of the Penal Code
is unconstitutional for violating the right to freedom of expression
to an individual or journalist/bloggers? And whether the section is a
reasonable or justifiable limitation of the freedom of expression
under Article 24 of the Constitution? The 2nd and 3rd Respondents
submit that, Section 77 is Constitutional as it does not violate the
petitioner's freedom of expression. The freedom of expression, as
envisaged under Article 33, is not absolute. It is subject to limitations
which are clearly stated under Sub-Article. Article 33 states as follows-

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

"Every person has the right to freedom of expression, which

includes
(a) freedom to seek, receive or impart information or ideas;
(b) freedom of artistic creativity; and
(c)academic freedom and freedom of scientific research.
(2) The right to freedom of expression does not extend to
(a)propaganda for war;
(b)incitement to violence;
(c) hate speech; or
(d) advocacy of hatred that-
(I) constitutes ethnic incitement, vilification of others or
incitement to cause harm; or
(ii) is based on any ground of discrimination specified or
contemplated in Article 27(4).
(3) In the exercise of the right to freedom of expression, every
person shall respect the rights and reputation of others.

91. The tweets by the interested party are subject to limitations under Sub-
Article 2. It is our submission that the tweet was a propaganda for war
and incitement to violence. It should not be treated as a criticism of the
government. Any allegations to that effect to be dismissed.

92. Article 24, on the other hand, limits the rights generally. The limitations
should be through law, reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom taking
into account all relevant factors. The factors are stated to include:
(i) The nature of the right or fundamental freedom.
(ii) The importance of the purpose of the limitation.
(iii) The nature and extent of the limitation.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

(iv) The need to ensure that the enjoyment of rights and

fundamental freedoms by the individual does not prejudice the
rights and freedoms of others.
(v) The relation between the limitation and its purpose and
whether there are less restrictive means to achieve the
purpose.

93. That the Constitution under Article 33(2) limits the freedom of
expression. This has been demonstrated earlier in these submissions.
The limitations are justifiable and reasonable on the ground that, the
same are meant to protect the rights of Kenyans and further ensure
protection of their security hence ensure enjoyment of rights. That,
the tweets in question were aimed at propagating war and violence
and not criticism of government. The argument that Section 77 is
vague is baseless. The Section is crystal clear on what is being regulated
thus enabling Kenyans to regulate their actions and speech.

94. Reliance is placed on the case of Dari Limited & 5 others v East
African Development Bank (Civil Appeal 70 of 2020) (2023] KECA
454 (KLR). In this case Judges M'INOTI, DR. K. I. LAIBUTA and M.
GACHOKA, stated as follows:

"The apparent interpretation of the above provision is that Parliament

purposefully intended that restrictive trade practices be regulated
within the context of professional associations such as the petitioner
and the interested parties. Furthermore, it is discernable from a reading
of the impugned Section that the Act in no way dictates or determines
how the said associations are to carry out their mandate or business
in light of their enabling legislations. The Act expressly speaks to
restrictive trade practices that it wishes to regulate in the context of
consumer protection in view of professional associations.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

113. In the circumstances of this case I find the case of Mark Obuya,
Tom Gitogo & Thomas Maara Gichuhi acting for or on behalf of
Association of Kenya Insurers & 5 others vs. Commissioner of
Domestic Taxes & 2 others [2014] eKLR pertinent and valuable. The
2 Judge bench pronounced itself as follows:"32. The legislature is the
law-making organ and it enacts the laws to serve a particular object
and need. In the absence of a specific violation of the Constitution, the
court cannot question the wisdom of legislation or its policy object. The
fact that the particular provision of the statute merely may be difficult
to implement or inconvenient does not give the court license to declare
it unconstitutional.”

95. That J.A. MAKAU, in Wanuri Kahiu & another v CEO - Kenya Film
Classification Board Ezekiel Mutua & 2 others; Article 19 East Africa
(Interested Party) & Kenya Christian Professionals Form (Proposed
Interested Party) (2020] eKLR stated as follows:
"The petitioners urge the court to find that the restriction of film
"Rafiki" by Kenya Film Classification Board amounts to violation
of the 1st petitioner 's right to freedom of expression guaranteed
under Article 33 of the Constitution of Kenya; whereas the Board
has urged this court to find that the Film's Act is constitutional in
terms of Article 24 of the Constitution. The Board further is of the
view that at all material times, it has acted within the four corners
of the law as provided under the constitution, relevant
international treaties that has been ratified by Kenya and
principally by the Films Act.
147. lt is worthwhile to note that the Guidelines, 2012,. though
not yet published in the gazette as provided under the Statutory
Instrument Act, has been formulated pursuant has the powers

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

donated by the Films Act, with a view to meet the objectives as

provided therein. I am satisfied that this court has residual
powers to adopt the measured and proportionate approach in
favour of public order and public interest in the face of the current
pressing and substantial societal needs. I have accordingly
found the decision to "Restrict" the film "Rafiki" is in good faith,
constitutional, valid and pursuant to the provision of the Film Act"

96. Reference is made to the case of Peta v Minister of Law,

Constitutional Affairs and Human Rights (CONSTITUTIONAL CASE
11 of 201 6) [2018] L.SHC 3 (18 May 2018). The honorable Judges in
dealing with a similar issue had this to say-
“It is clear that section 14 does not confer an absolute and
unconditional freedom of expression. Freedom of expression
must be enjoyed without prejudicing the rights of other persons,
which is why under section 14(2) the Constitution allows for
promulgation of laws which may curtail freedom of expression for
the sake of protecting matters itemized in that subsection which
include among others, individuals' reputational interests. This
model of guaranteeing a right and then providing circumstances
for its curtailment is based on Article 19 of the International
Covenant on Civil and Political Rights (1CCPR)
.…..Constitutional Requirements for a Valid Legislative
Enactment Section 14(2) of the Constitution is the source of the
impugned provisions of the Act. Like every other legislative
enactment, it is subject to two very important constitutional

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

constraints. The first constraint is that there must be rational

connection between the legislation and the achievement of a
legitimate government purpose. Secondly, any legislative
enactment must not infringe upon constitutionally protected
rights and freedoms except where such limitation is provided or
allowed by the Constitution. Section l4(2) of the Constitution
provides, in relevant part, that "nothing contained in or done
under the authority of any law shall be held to be inconsistent
with or in contravention of this section.." (My emphasis) Section
14(2) authorizes an abridgement of the freedom of expression to
cater for the enumerated circumstances, which includes among
others, protection of reputations. However, section 14(2)
crucially, in terms of the concept "any law", requires that such a
limitation of freedom of expression guarantee must have a legal
foundation. Such a law must evince the following characteristics.
Firstly, the law must be written in easy and accessible manner. It
must be formulated with sufficient precision to enable the citizens
to regulate their conduct accordingly with reasonable certainty".

97. The 2nd and 3rd Respondents contend that, in determining the
Constitutionality of a section, the court has to consider the purpose and
effect of the impugned statute or section thereof. Every legislation is
deemed constitutional and the burden of proving the same lies on the
person alleging the same. It is our humble submission that Section 77
was enacted to regulate the manner in which Kenyans communicate so
as to secure national security of each person in Kenya. The petitioner

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

has failed to demonstrate how Section 77 of the Penal Code is

unconstitutional hence we pray that the petition be dismissed with cost.

98. Reference is made to the case of Eunice Nganga & another v Law
Society of Kenya & another (2019) eKLR. J. E.C MWITA stated as
follows-

“First, there is a rebuttable presumption that a statute or provision

is constitutional and that the burden is always on the person
alleging constitutional invalidity to prove the alleged
unconstitutionality. The reasoning behind this principle is that the
legislature being people’s representative understands the
problems people face and, therefore the laws enacted are
intended for resolving those problems. In that regard, the court
held in Ndynabo v Attorney General of Tanzania [2001] EA
495 that an Act of Parliament is presumed constitutional and that
the burden is on the person who contends otherwise to prove the
contrary.

32. Second, to determine constitutional validity, the court has to

examine the purpose or effect of the impugned statute or
provision. The purpose of enacting a legislation or the effect of
implementing it may lead to nullification of the statute or its
provision if found to be inconsistent with the constitution.”

99. That J. Ong'undi in the case of Law Society of Kenya v National

Assembly& 2 others; Association of Professional Societies In East
Africa & another (Interested Parties) (Petition 215 of 2020) 2022/
KEHC 10070 (KLR), in deciding on a similar issue, stated as follows:

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

"In interpreting a Statute, the first principle is the general presumption

that Acts of Parliament are enacted in conformity with the Constitution
as affirmed by the Court of Appeal of Tanzania in the Ndyanabo vs.
Attorney General case (supra) in the following words: “Until the
contrary is proved, legislation is presumed to be constitutional. It is a
sound principle of constitutional construction that possible, legislation
should receive such a construction as will make it operative and not
inoperative"

106.Secondly, this Court is required to examine the purpose and effect

of the impugned Statute as stated in the case of Geoffrey Andare v
Attorney General & 2 others (2016] eKLR. The Court at paragraph
66 held as follows: “It has also been held that in determining the
constitutionality of a statute, a court must be guided by the object
and purpose of the impugned statute, which object and purpose can
be discerned from the legislation itself. The Supreme Court of Canada
in R vs Big M Drug Mart Ltd., [1985] I S.C.R. 295 enunciated this
principle as follows: “Both purpose and effect are relevant in
determining constitutionality”;

100. On the issue as to whether the Section offends the principle of legality
in Article 50(2) (n) of the Constitution. The 2nd and 3rd Respondents
submit that, the police should be allowed to conduct their duties. That
Article 50(2) (n) stipulates that an accused person has a right not to be
convicted for an act or omission that at the time it was committed or
omitted was not an offence in Kenya or a crime under international law.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

101. In the instant case, the interested party has been charged with the
offense of subversion under Section 77 of the Penal Code in MAKADARA
CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO E4457 OF 2023.
This was on 24.7.2023 while the tweets were tweeted on 16.7.23. The
Penal Code commenced in 1930. It is therefore clear that the acts were
committed when the offense was recognized in Kenya. There is thus no
violation of Article 50(2)(n) of the Constitution. We further submit that the
criminal case should be heard and determined by the subordinate court.
The petition herein should not be a bar to the conclusion of the same.

102. The 2nd and 3rd Respondents submit that, the onus of proving that
Section 77 of the Penal Code is unconstitutional lies on the petitioners
who has however, failed to discharge this mandate.

103. That, the National Security of any society is paramount and should be
safeguarded. Section 77 has safeguarded this by illustrating what
amounts to subversion hence regulating the conduct of every Kenyan in
terms of speech. The Section does not bar any individual from criticizing
the incumbent government as alleged by the petitioners. The tweets by
the interested party, as illustrated above, were (and are) aimed at
propagating war and violence hence causing insecurity which in the end
would deny other Kenyans their right to enjoy the rights guaranteed to
them by our Constitution. The rights and freedoms are not absolute and
each citizen has a duty to ensure that his/her conduct does not infringe
on others rights. In the instant case the interested party failed to take this
into account before tweeting his tweets on 16.7.2023. the tweets were
not aimed at criticizing the government as alleged.

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

104. The 2nd and 3rd Respondents submit that Article 33 of the Constitution,
guarantees freedom of speech but the same is limited according to Sub-
Article 2 and Article 24 of the Constitution which the 2nd and 3rd
Respondents contend they have demonstrated in submissions urging
that, this petition lacks merit and should be dismissed with costs to 2nd
and 3rd Respondents.

Determination

105. It is not far from our lips and eyes that independent Kenya inherited
from the colonial state a repressive system, Sedition criminal prosecution
was the hall mark of post-independence Kenya, “mwakenya” and
“pambana” prosecutions, nyayo house torture and this dark chapter of
the nation constrains this court to recall the same owing to the response
to this petition by the 1st and the 3rd Respondent.

106. It is noteworthy that Chapter IX of the Penal Code relates Unlawful

Assemblies, Riots and Other Offences Against Public Tranquility, the
provisions of Sections 70 to Section 76 were repealed by Act No. 4 of
1968 some of which provisions, were utilized in the case of Jomo
Kenyatta & 5 others v Regina [1954] eKLR where by the pre-
independence African leaders were prosecuted and convicted for the
offence of being members of an unlawful Society, namely the Mau Mau
Society of managing or assisting in the management of the same
unlawful Society contrary to Sections 70 and 71 of the Penal Code. It is
therefore safe to conclude that Chapter IX was intended as a regime
instrument for self-preservation. In the above case, the court allowed the

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

appeal on the basis that the prosecutions were initiated, conducted and
concluded without the consent of the governor.

107. If I could quote the former President the Late Mwai Kibaki when serving
as finance minister in response to a direct question relating to “sedition
charges” stated that;
"It is true that writers and social critics all over the
world want to write and critically comment on what is
going on in their own country of origin. But one of the
most terrible things about the modern world is how
writers have had to immigrate to another nation in
order to be able to comment on what is going on in
their own country of origin. And it is tragedy because
it means that societies are themselves becoming
intolerant whereas the true freedom in any democratic
system should be as we, are trying to do in this
country: We have not succeeded yet, but we are trying-
that those who differ and those who take a different
view of the society we live in must be able to point that
picture they see, so that we can have many pictures of
the kind of Kenya we are living in now .... at least let us
give encouragement to those who spend their lifetime
writing, commenting on the society that we live in.
There is not very much that we do but at least we can
give them that particular kind of recognition. “

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

108. With the promulgation of the constitution on the 27th September 2010
was the conferment of a unique jurisdiction of this court which is most
profound flowing from Article 165(3) (d) (i) the;

(d) jurisdiction to hear any question respecting the

interpretation of this Constitution including the determination
of--

(i) the question whether any law is inconsistent with or in

contravention of this Constitution;

109. The High Court is conferred upon with the profound jurisdiction to hear
questions relating to interpretation of the constitution and determination
of whether any law is inconsistent with or in contravention of this
constitution.

110. The transformative constitutional design deliberately appreciates that

Kenyans want a break with the dark past, the entire system of law was a
colonial hand-down with very minor and cosmetic variations that were
intended for self-preservation and colonial repression. To echo the
findings in Jacqueline Okuta & another v Attorney General & 2 others
[20171 eKLR the need to align legislation with the constitution shall entail
a continuous scrutiny and examination of statutes and provisions thereof
that are no longer fit for purpose.

111. The developing precedent on constitutional interpretation from the

Superior Courts1 has now evolved and coalesced as follows;

1 • Evans Odhiambo Kidero & 4 others v Ferdinand Ndungu Waititu & 4 others [2014] eKLR
• The Interim Independent Election Commission [2011] eKLR
• Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
[2014] eKLR

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(i) Article 259 of the Constitution as a mandatory principle obliges

courts to protect and promote the spirit, purposes, values and
principles of the Constitution, advance the rule of Law, Human
Rights and fundamental freedoms in the Bill of Rights and
contribute to good governance while permitting development of
the law.

(ii) The Constitution must be construed holistically, liberally,

purposively and in a broad manner so as to avoid a narrow and
rigid interpretation tainted with legalism.

(iii) The Constitution must be interpreted in a contextual

manner, that Courts are constrained by the language used and
so cannot impose a meaning that the text is not reasonably
capable of bearing. Furthermore, constitutional interpretation
does not favour a formalistic or positivistic approach but a
generous construction of the text in order to afford the fullest
possible constitutional guarantees.

(iv) In considering the purposes, values and principles while

interpreting the Constitution, Courts must take into account the
non-legal phenomena by reflecting on the history of the text.

(v) Constitutional interpretation demands that no one provision of

the Constitution should be segregated from the others or be
considered alone. The provisions are to be interpreted as an

• Centre Human Rights and Awareness v John Harun Mwau & 6 Others (2012) eKLR

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Judgment Katiba Institute & 8 Ors Vs DPP & 2 Ors HCCHRPET No E016 of 2023

integrated whole so as to effectuate the greater purpose of the

Constitution.

(vi) Where there is an impugned provision in a Statute the

same must as much as possible be read in conformity with the
Constitution to avoid a clash.

(vii) The Court ought to examine the object and purpose of the
Act (Statute) and if any statutory provision read in its context can
reasonably be construed to have more than one meaning the
Court must prefer the meaning that best promotes the spirit and
purposes of the Constitution. See Tinyefuza v Attorney-
General Const. Pet. No 1 of 1996 (1997 UGCC 3) and Re
Hyundai Motor Distributors (PTY) & others v Social No &
others (2000) ZACC 12 2001(1) S.A.545.

(viii) The principles of interpretation require that the words and

expressions used in a statute be interpreted according to their
ordinary literal meaning in the statement and in the light of their
context. See Adrian Kamotho Njenga v Kenya School of Law
(2017) eKLR and Law Society of Kenya v Kenya Revenue
Authority & another (2017) eKLR.

112. When the constitutionality of a statute or provision of a statute is called

to question, the court is under obligation to employ the constitutional
mirror laying the impugned legislation or provision alongside the Article(s)
of the constitution and determine whether it meets the constitutional test.
The court must also check both the purpose and effect of the Section or
the Act, and see whether any of the two could lead to the provision being

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declared unconstitutional. That is to say, the purpose of a provision or

effect thereof, may lead to unconstitutionality of the statute or provision.

113. Where criminal prosecution has been undertaken by the Director of

Public Prosecutions under the mandate conferred by Article 157(6) of
the Constitution, the Court can only interfere under Article 157 (11)
thereof where any of the principles in that Sub-Article are flouted. That
Sub-Article, for avoidance of doubt, provides as follows;

“(1) … (2) … (3) … (4) … (5) … (6) … (7) … (8)

… (9) … (10) …
(11) In exercising the powers conferred by this Article, the
Director of Public Prosecutions shall have regard to the
public interest, the interests of the administration of justice
and the need to prevent and avoid abuse of the legal
process.”

114. This Court reiterates the above finding and will take the same approach
in this matter. But to address the specific complaints in the instant
Petition, it is best to address each of the issues raised separately as I
hereby do below.
Prayer (a) - A declaration be and is issued that section 77 (1) and
(3)(a), (b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63 is
unconstitutional;

Article 32 provides for the freedom of conscience, religion, belief

and opinion.
Article 33 provides for freedom of expression;
Article 36 provides for the freedom of association;
Article 49 provides for the rights of arrested persons and
Article 50 provides for fair hearing.

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115. This Court ascribes with the dictums that, any law that conflicts with
the Constitution is void to the extent of the inconsistency, and any act or
omission in contravention of this Constitution is invalid.

116. There is also a rebuttable presumption of legality, that the Act or

provision was intended to serve the people and is therefore constitutional.
As reaffirmed in the case of Nairobi Metropolitan PSV Saccos Union
Limited & 25 others vs County of Nairobi Government & 3 others
[2013] eKLR. The onus is always on the person challenging the
legislation to prove the unconstitutionality alleged.

117. That the Impugned Section 77 of the Penal Code provides that;
(4) Any person who does or attempts to do, or makes any
preparation to do, or conspires with any person to do, any act
with a subversive intention, or utters any words with a
subversive intention, is guilty of an offence and is liable to
imprisonment for a term not exceeding seven years.

118. It is thus apparent and explicit that the offence as created by Section
77 (1) and (3) of the Penal Code is a felony offence for the purposes of
this section, “subversive” means –
(i) supporting, propagating (otherwise than with intent to attempt to
procure by lawful means, the alteration, correction, defeat,
avoidance or punishment thereof) or advocating any act or thing
prejudicial to public order, the security of Kenya or the
administration of justice;

(ii) inciting to violence or other disorder or crime, or counselling

defiance of or disobedience to the law or lawful authority;

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(iii) intended or calculated to support or assist or benefit, in or in

relation to such acts or intended acts as are hereinafter described,
persons who act, intend to act or have acted in a manner
prejudicial to public order or the security of Kenya or the
administration of justice, or who incite, intend to incite or have
incited to violence or other disorder or crime, or who counsel, intend
to counsel or have counselled defiance of or disobedience to the
law or lawful authority;
(iv) indicating, expressly or by implication, any connection,
association or affiliation with, or support for, any unlawful society;
(v) intended or calculated to promote feelings of hatred or enmity
between different races or communities in Kenya:
Provided that the provisions of this paragraph do not extend to
comments or criticisms made in good faith and with a view to the
removal of any causes of hatred or enmity between races or
communities;
(vi) intended or calculated to bring into hatred or contempt or to
excite disaffection against any public officer, or any class of public
officers, in the execution of his or their duties, or any naval, military
or air force or the National Youth Service for the time being lawfully
in Kenya or any officer or member of any such force in the
execution of his duties:
Provided that the provisions of this paragraph do not extend to
comments or criticisms made in good faith and with a view to the
remedying or correction of errors, defects or misconduct on the part
of any such public officer, force or officer or member thereof as
aforesaid and without attempting to bring into hatred or contempt,
or to excite disaffection against, any such person or force; or
(vii) intended or calculated to seduce from his allegiance or duty any
public officer or any officer or member of any naval, military or air

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force or the National Youth Service for the time being lawfully in
Kenya

119. It is explicit and apparent that, the offence thereby created is a

derogation to the freedom of expression and this court is thus called upon
to determine whether this derogation is a reasonable and a justifiable
limitation of the freedoms of expression in an open and democratic
society based on human dignity, equality and freedom under Article 24.

120. This Court is well guided when deploying the purpose and effect test
holding in the case of Robert Alai v The Hon Attorney General &
Another [2017] eKLR where the Court held that: -

34. In applying the purpose and effect principle, the court

has to look at the history and circumstances under which
the impugned provision or legislation was enacted. The
marginal notes to section 132 show that the section was
introduced in 1958, at the height of the state of emergency,
a turbulent period in the history of this country. The
purpose was to suppress dissent among the natives with
the object of protecting and sustaining the colonial
government in power then. However, the resultant effect
was to instill fear and submission among the people. This
cannot be the object of section 132 in the current
constitutional dispensation when people enjoy a robust Bill
of Rights that has opened the democratic space in the
country, and in particular when Article 20(2) stresses that
every person shall be entitled to the rights and fundamental

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freedoms in the Bill of Rights to the greatest extent

consistent with the nature of the right or fundamental
freedom. People have the right to exercise the right to
freedom of expression to the greatest extent? subject only
to the limitation of that right under Article 33 (2) or any other
provision in the constitution. [Emphasis added]

121. The Supreme Court, in the case of Karen Njeri Kandie v Alassane
Ba & Another (2017] EKLR emphasized the need to establish the
nature of the right, the importance of the purpose of the limitation, the
nature and extent of the limitation, and the fact that the need for
enjoyment of the right by one individual did not prejudice the rights of
others, as well the consideration of the relationship between the limitation
and its purpose, and whether there were less restrictive means to achieve
that purpose.

122. It goes without say that, Freedom of expression and the rights to
information are the cornerstone of any democratic state and that every
person has the right to freedom of expression, which includes, freedom
to seek, receive or impart information or ideas; freedom of artistic
creativity; and academic freedom and freedom of scientific research.

123. As a derogation, the right to freedom of expression does not extend to,
propaganda for war; incitement to violence; hate speech; or advocacy of
hatred that—
a. constitutes ethnic incitement, vilification of others or incitement
to cause harm; or

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b. is based on any ground of discrimination specified or

contemplated in Article 27 (4).
124. The 2nd and 3rd Respondents admit and contend in submission, that
“subversion” is compatible with the sovereignty of the people of Kenya
because it shields the government and public officers from criticism and
that, Article 1 of the Constitution guarantees the sovereignty also protects
the security of Kenyans and that, the section was enacted to cushion
against activities that would interfere with the Kenyan security. In the
instant case, the ‘tweet’ by the interested party was, and is, a security
threat.

125. The 2nd and 3rd Respondents have provided the definition of
“Subversion” as “an attempt to overthrow a government that has been
legally established” it is noteworthy that this word remains without
definition in law and that the definition of “Subversive activities” under
Section 77(3) remains silent as to what subversion is.

126. The 2nd and 3rd Respondents submit that, the ‘tweets’ by the interested
party are subject to limitations under Article 24(2) and that the ‘tweet’ was
a propaganda for war and incitement to violence as such it should not be
treated as a criticism of the government.

127. While there is no cogent evidence or material placed before this court
in regard the ‘tweets’ by the interested party being subject to limitations
under Article 24(2) and that the ‘tweet’ was a propaganda for war and
incitement to violence as justification of the constitutionality of the
provision by the 2nd and 3rd Respondents, this court finds the tangent to
be a chilling reminder of the liberal and broad interpretation on making a

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decision to prosecute that leads to prosecution for a felony and the

possibility for abuse of such provision.

128. The purported breach of law or illegal act created by Section 77 of the
Penal code, cannot be discerned in the provision itself, the section
encompasses any person who does, attempts to do, makes any
preparation to do, conspires with any person to do, with a subversive
intention, or utters any word(s) with a subversive intention and a
secondary definition as contained in sub-section (3) on “Subversive”
where in a tautologous language to “Wanjiku”, the meaning of
“Subversive” takes in quite a variety of activities, and that its contents are
therefore broad and wide that it is vague or indefinite.

129. The purported breach of law or illegal act created by Section 77

ultimately fails to define what “subversive intention” would constitute.
The only Stark aspect of this provision is where automatically under
Section 77(1) an offence is created without ingredients, need for the
intention or knowledge of wrongdoing that constitutes part of a crime
“mens rea”, whereby “any person who utters any words with a
subversive intention is guilty of an offence and is liable to
imprisonment for a term not exceeding seven years”.

130. The last limb of Section 77(1) creates a derogation to the right to
freedom of expression as the human conduct of uttering is ordinarily in
human expression and that this derogation is blanket in form, “subversive
intention” remains undefined leaving the prosecutor to conjure and that
even with the definition of “Subversion” under section 77(3) it still remains

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a mystery what conduct would constitute an offence where one utters any
words with a subversive intention.

131. This Court would hasten to add that the purported derogation to the
right to freedom of expression created in section 77(1) existed prior to the
promulgation of the constitution and would thus not be a derogation
envisioned under Article 24(2).

132. On the scope of limitation of rights and freedoms under Article 24 of

the Constitution, the Court of Appeal in the case of Seventh Day
Adventist Church (East Africa) Limited v Minister for Education & 3
others [2017 eKLR (Civil Appeal 172 of 2014) held that:

“While Article 19(3)(c) recognizes that the rights and

fundamental freedoms in the Bill of Rights are only subject to the
limitations contemplated in the Constitution, Article 25 identifies
only four rights and fundamental freedoms that cannot be limited.
It follows that by Article 24 the rest of the rights and fundamental
freedoms under the Bill of Rights are enjoyed and guaranteed
subject to strict terms of limitations.

First, it must be demonstrated that the limitation is imposed by

legislation, and even then only when it is shown that the limitation
is reasonable and justifiable in an open democratic society.
Further it must be based on dignity, equality and freedom, taking
into consideration the nature of the right or fundamental freedom
sought to be limited, the importance of the purpose of the
limitation, its nature and extent, the enjoyment by others of their

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own rights as well as a consideration whether there are less

restrictive means to achieve the purpose”.

133. This court takes judicial notice of the legal framework subsisting with
regard to Public Order Act, CAP 56, an Act of parliament to make
provision for the maintenance of public order, and for purposes
connected therewith and Official Secrets Act CAP 187, an Act of
parliament to provide for the preservation of State secrets and State
security, The National Cohesion and Integration Act of 2008 and Act to
provide for specific legislation limiting the right the right to freedom of
expression to, propaganda for war; incitement to violence; hate speech;
or advocacy of hatred that—

c. constitutes ethnic incitement, vilification of others or incitement

to cause harm; or

d. is based on any ground of discrimination specified or

contemplated in Article 27 (4).

134. I equally note that the framework and legislation derogating the right to
freedom of expression creates offences that are misdemeanor in
classification with a penalty of imprisonment for a term not exceeding
three (3) years or a fine of not more than Kshs 1,000,000/- for the offence
of Hate Speech and the offence of incitement to ethnic contempt.

135. It therefore goes without say that, Section 77(1) and (3) of the penal
code is a colonial legacy which limits freedom of expression through the
vaguely worded offence of subversion.

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136. I have no doubt in my mind and fully associate myself with the
sentiments of this court in the case of Geoffrey Andare v Attorney
General & 2 others [2016] eKLR

“78. It is my view, therefore, that the provisions of section 29 are so

vague, broad and uncertain that individuals do not know the
parameters within which their communication falls, and the
provisions therefore offend against the rule requiring certainty in
legislation that creates criminal offences. In making this finding, I am
guided by the words of the Court in the case of Sunday Times vs
United Kingdom Application No 65 38/74 para 49, in which the
European Court of Human Rights stated as follows:
“(A) norm cannot be regarded as “law” unless it is
formulated with sufficient precision to enable the
citizen to regulate his conduct: he must be able- if need
be with appropriate advice- to foresee, to a degree that
is reasonable in the circumstances, the consequences
which a given situation may entail.”

79. As the Court observed in the CORD case, the principle of law
with regard to legislation limiting fundamental rights is that the law
must be clear and precise enough to enable individuals to conform
their conduct to its dictates. The Court in that case cited with
approval the words of Chaskalson, Woolman and Bishop in
Constitutional Law of South Africa, Juta, 2nd ed. 2014, page 49
where the learned authors stated that:

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“Laws may not grant officials largely unfettered discretion to use

their power as they wish, nor may laws be so vaguely worded as to
lead reasonable people to differ fundamentally over their extension.”

137. This Court thus finds that, the provisions of the section 77 of the penal
code are over broad and vague, and that they limit the right to freedom
of expression and there is lack of clarity as to the purpose and intent and.
the limitation in section 77 is not "provided by law". The section is vague
and over-broad firstly by not explicitly limiting the freedom of expression
but adding the limitation on to other acts or conduct , there exists
confusing definition of “subversion” especially about the meaning of
"prejudicial to public order, security of Kenya and administration of
justice", "in defiance of or disobedience to the law and lawful authority;
unlawful society" or "hatred or contempt or excite disaffection against any
public officer or any class of public officer". None of the terms used in the
offence are defined or capable of precise or objective legal definition or
understanding.

138. The 1st and 3rd Respondents have not justified the necessity of the
provisions in section 77 of the Penal code as pursuing a legitimate aim,
and being strictly necessary in an open and democratic society I
accordingly find that the said provision serves no legitimate aim and is
not strictly necessary in an open and democratic state. In fact, there
exists least restrictive measures in derogation to the Freedom of
expression.

139. The Interested Party elected to spectate on the sidelines, and did not
participate by filling any submissions, thereby making it difficult to issue

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any orders of prohibition, however having found the provisions of section

77 of the penal code to be unconstitutional, it therefore follows that, no
criminal prosecution may be sustained under the said provision and the
1st Respondent has the constitutional mandate to determine whether or
not to proceed with the prosecution of the interested party with regard to
the facts alleged against him should they disclose an offence under any
other provision of law.

140. Consequently, this court finds in favor of the petitioners allowing the
Petition and issues the following orders;
a) A Declaration is hereby issued that, section 77 (1) and (3)(a),
(b), (c), (d), (e), (f), and (g) of the Penal Code, Cap 63 is
unconstitutional;
b) A Declaration is hereby issued that, the continued
enforcement of section 77 (1) and (3)(a), (b), (c), (d), (c), (e) (f),
and (g) of the Penal Code by the Respondents against the
Interested party or any member of the public is
unconstitutional.
c) There shall be no costs, this being a public interest matter.

It is so Ordered.

Signed, Dated and Delivered

at Nakuru on this 18th Day of March 2024.

______________________________
Mohochi S. M.
Judge

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