Public Prosecutor appeals annulled Cybercrime law provisions at the Supreme Court
NAIROBI, Kenya — The Office of the Director of Public Prosecutions (ODPP) has filed an appeal at the Supreme Court seeking to overturn a Court of Appeal decision that declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act unconstitutional.
The Public Porsecutor announced the appeal on Tuesday setting the stage for a high-stakes legal battle over regulation of online speech in Kenya.
In its petition, the ODPP says it is dissatisfied with the March 6, 2026 judgment in which a three-judge bench — Justices Korir Weldon Kipyegon, Aggrey Muchelule and Patrick Kiage — found the provisions to be overly broad, vague, and capable of criminalising lawful expression.
The appellate judges held that the provisions lacked precision and could easily be misused against ordinary citizens engaging online, warning that they were “so broad, wide, untargeted, akin to unguided missiles, and likely to net innocent citizens.”
At the centre of the dispute are Sections 22 and 23 of the law, which criminalise false and misleading online publications.
Section 22 provides that: “A person who intentionally publishes false, misleading or fictitious data or misinforms with intent that the data shall be considered or acted upon as authentic… commits an offence and shall, on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both.”
It further limits freedom of expression under Article 33 of the Constitution, stating that protection does not extend to false or misleading publications that are likely to propagate war, incite violence, constitute hate speech, or negatively affect the rights and reputations of others.
10 years in jail
Under Section 23, the Act further spells out a Sh5 million fine and 10-year jail term for violations.
“A person who knowingly publishes information that is false in print, broadcast, data or over a computer system, that is calculated or results in panic, chaos, or violence among citizens of the Republic, or which is likely to discredit the reputation of any person commits an offence and shall on conviction, be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding ten years, or to both,” the Section provides.
The Court of Appeal found that both provisions failed to meet the constitutional threshold under Article 24, which requires that any limitation of rights be reasonable, justifiable, and proportionate.
The judges warned that the law, in its current form, could be used to police social media activity and punish individuals for unknowingly sharing false information.
The Bloggers Association of Kenya and other civil society groups had challenged the provisions, arguing that they infringe on freedom of expression guaranteed under Article 33 of the Constitution.
Scams
Despite the ruling, the State has consistently defended the cybercrime framework, arguing it is necessary to combat misinformation, cyber fraud, terrorism-related online activity, SIM-swap scams, and digital exploitation.
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Through the appeal, the ODPP is now asking the Supreme Court to reinstate the provisions in full, arguing that they are essential tools for maintaining order in the digital space and protecting citizens from harm.
“The ODPP remains committed to executing its constitutional mandate in accordance with the rule of law, public interest and the administration of justice,” the office said.
The case adds to a growing line of constitutional disputes over the Computer Misuse and Cybercrimes framework, parts of which have already faced judicial scrutiny and suspension at the High Court level.
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With focus now turning to Supreme Court, the apex court’s final determination could significantly reshape the balance between online regulation and free expression in Kenya’s rapidly evolving digital environment.