Case Digest: Cyprian Nyakundi v DPP and A.G exparte Article 19 East Africa

by Mahakamani News

The case titled No. 214 of 2018 is a peculiar constitutional petition that appeared before Justice Wilfrida Okwany. The petition pits the petitioner, Mr. Cyprian Nyakundi against two respondents – the Director of public prosecution (DPP) and the attorney general (AG) – with Article 19 East Africa joining the petition as an Intended Interested Party.

Petitioners Case

The petitioner sought three orders from the court:

  1. A declaration that Section 84D of the Kenya Information and Communication Act (KICA) 2009 is unconstitutional and invalid as it is repugnant when read with Article 33 and 50(2)(n) of the Kenyan Constitution;
  2. A declaration that the continued enforcement of Section 84D by the DPP against the petitioner is in violation of the Bill of Rights and therefore prejudice to not only the public interest but also the administration of justice. Suffice to say an abuse of the legal process.
  3. An injunction barring the DPP from carrying on with the prosecution of the petitioner in ongoing proceedings: Milimani Criminal Case Number 166 of 2018; Kiambu Criminal Case Number 686 of 2018 and Kiambu Criminal Case Number 687 of 2018.

The petitioner argued that Section 84D of the KICA Act (Cap 411A of the Laws of Kenya) is vague and overbroad with regards to the meaning of the words “lascivious”, “appeals to the prurient interest” and “tends to deprave and corrupt persons”. Furthermore, it was his opinion that the words listed above are neither defined in the act nor capable of bearing precise and an objective legal definition or understanding. Consequently, innocent persons are subject to arbitrarily arrests under the said Section because of the wide margin of subjective interpretation, misinterpretation and abuse by law enforcement who may determine the criminal penalties applicable thereof.

Therefore, the impugned Section 84D creates an offence by criminalizing the publishing of obscene information which in electronic form and consequently limits the constitutionally guaranteed freedom of expression.

The petitioner further averred that the interpretation of Section 84D offended the principle of legality as expressed in Article 50(2)(b) of the Kenyan constitution. The Article states that every accused person has the right to a fair trial, which includes the right to be informed of the charge, with sufficient detail to answer it. This means that a criminal law specifically one that prohibits fundamental rights must be clear enough to be understood and must be precise enough to cover only the activities connected for the law’s purpose.

From the petitioner’s point of view, Section 84D has a chilling effect in the rights stipulated under Article 35 of the Constitution. Article 35 on the right to information is contravened by Section 84D since the Section neither expounds nor outlines on the type of content that can be shared. Rather, the Section focuses on the supposable effect of the information and counters any subversive, offensive and conducive to breach of the peace notwithstanding the information’s artistic, academic or scientific value. As such, the petitioner opines that the impugned Section does not amount to a reasonable and justifiable limitation of the freedom of expression in an open and democratic society as envisioned by Article 24 of the Kenyan Constitution and thereby amounts to modern forms of censorship.

The Interested Party, Article 19-East Africa through learned counsel, Mr. Ochiel submitted that Section 84D of the Kenya Information and Communication Act failed to give due regard to freedom of expression as outlined by Article 33 of the Constitution and Article 19(3) of the International Convention on Civil and Political Rights (ICCPR). Basically, reiterating what the petitioner said in that Section 84D created an offence that is undefined and whose effect is arbitrariness in the application of criminal law against any dissenting voice and opinion.

Furthermore, the counsel submitted that the petitioner had been charged under the impugned Section 84D and therefore his rights under Article 33 of the Constitution have been limited on grounds that the ‘’limitation is reasonable and justifiable’’ whereas it is required that respondents prove that the limitation is reasonable and justifiable [the right to be presumed innocent until proven guilty lies at the very heart of criminal law if not the constitution of Kenya]

Article 19 East Africa further submitted to the courts that the impugned Section does not satisfy the three-part test set out under Article 24 of the Constitution. The three-part test provides that a limitation: (1) must be provided for under the law; (2) must have a legitimate aim (3) should be necessary or proportional.

Supporting this claim, the counsel argued that for a norm to be characterized as law then it must be formulated with sufficient precision such that an accused person should have exactly known what conduct would attract criminal sanctions. Vagueness of the law attracts arbitrariness thereby leaving an accused person at the mercy of the DPP or the court’s subjective interpretation.

Respondents Case

The office of the DPP opposed the petition, confirming that the petitioner had indeed been arraigned and charged before both Milimani and Kiambu Chief Magistrates Court for the offence under the contested Section 84D of KICA. The office of DPP further opposed the petition on grounds that the petitioner is a habitual offender who on several occasions had been charged for misuse of electronic media platforms and the orders that he sought in the petition were intended to make him evade accountability for the offensive acts that he committed.

Through learned counsel, Miss Mwenda, the 1st respondent submitted that the rights under Article 33 of the Constitution can be limited. For this case they argued that the petitioner had prejudiced the constitutional rights and freedoms of others namely Anne Waiguru, Fred Matiang’i and Mike Mbuvi Sonko.

With regards to the interpretation of Section 84D, Miss Mwenda submitted that the courts ought to have adopted a construction that provided the general legislative purpose underlying the provision.

In order to counter the petitioner’s orders of injunction to bar the 1st respondent from carrying on with his prosecution, the counsel submitted that the DPP averred that an order of prohibition can only be sought when a public body or official has acted ultra vires. Thus, in their purview orders to quash the ODPP’s decision to institute criminal charges against the petitioner can only be obtained by way of Judicial review.

The office of the AG being the 2nd respondents rebutted the petition on several grounds: (1) That the application and petition herein were misconceived, unfounded and otherwise abuse of the court process; (2) The petitioner portends the constitution had unsettled other laws of procedure and administration of justice in particular, the KICA; (3) That article 33 of the Constitution is a self-contained provision of the law in respect to the right to freedom of expression and it has limitations expressed in Article 33(2)(d)(i) and 33(3) specifically; (4) The trial court applying the law on the facts has the capacity to determine whether the petitioner vilified the person mentioned and injured their reputations; (5) The petition is speculative in that it presumes that the petitioner will be convicted; (6) Granting the orders sought by the petitioner will be tantamount to the court at the behest of the petitioners interfering with the exercise of constitutional powers by the Office of the DPP


In the analysis of the case, Article 2(3) of the Constitution stipulates that the Constitution is the supreme law of the land and declares that any law or conduct that is inconsistent with it as null and void to the extent of its inconsistency. Moreover, under Article 259 of the constitution, the court is enjoined to interpret the constitution in a manner that: promotes its purposes, values and principles; advances the rule of law, human rights and fundamental freedoms enshrined in the bill of rights; contributes to good governance. In exercising its judicial authority, the courts are obliged under Article 159(2)(e) of the constitution to protect and promote the purposes and principles of the constitution.

With the aforementioned statement is mind the court held that the main issue for determination was whether the impugned Section 84D of KICA is unconstitutional.

In determining this petition, the guiding principle that the court relied on is that there exists a rebuttable presumption of legality of statutes based on the understanding that an Act or provision is intended to serve the people. However, the onus is always on the person challenging a legislation to prove the unconstitutionality alleged.

In determining the constitutionality of a statute, the court will be under a duty to consider the impugned legislation alongside the Article(s) of the Constitution and to determine whether it meets the constitutional validity test. This is achieved through an in-depth analysis of the purpose and effect. As for example in this petition is how the effect of the legality of the Section invalidates the purpose which it was designed for.

The courts therefore held that the standard by which the constitutional validity of the challenged Section should be judged with should be both the rationality test and the reasonableness and proportionality tests which are applied when a legislation limits a fundamental right in the Bill of Rights. Article 21(1) of the Constitution provides that such a limitation is valid only if it is reasonable and justifiable in an open and democratic society.


In her obiter dicta, Justice Okwany held that Kenya is a democratic state with democratically elected leaders and it therefore must be appreciated that it is only through criticism that citizens will make these 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 freely express themselves if they do not criticize or comment about their leaders and public officers. Free speech is the last bastion against irresponsible governments in which politicians tend to wield inordinate power and influence to silence their critics.

Learned Justice Okwany also recognized that most ugly crimes against the citizens are committed by politicians because their baseness and perversity are hidden from the public scrutiny. In that regard, the court took judicial notice of the fact that excesses of the state which had been 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.

Therefore, it is important for public officers to tolerate all manner of criticism in an open and democratic state because people usually exercise the rights granted to them by the constitution and in whatever case, a legislation’s purpose should not be to suppress these rights.

The court using the purpose and effect principle considered the circumstances that the impugned provision or legislation was enacted. The preamble of KICA indicates that it was enacted in the year 2009 for the various purposes. Nonetheless, a year later the new and transformative Constitution introduced a wide array of fundamental rights and freedoms under the Bill of Rights including the freedom of expression that is the main subject of the petition.

Section 84D, albeit enacted to rein in on the publishing of obscene information its resultant effect had been to instil fear and submission among the people with consideration to the hefty fines and long prison sentence that a person charged under the impugned Section may face in the event of a conviction.

Thus, the extent which the impugned provision purported to suppress dissent, was in the courts view, a derogation of Article 33 of the Constitution and contravenes Article 25(c) to the extent that it limits the right to a fair trial as enshrined in Article 50(2)(b).

It is for this reasons that the court arrived at invalidating the impugned Section 84D as unconstitutional considering that even though its purpose was to control/limit use of obscenities in communication its effect had been to infringe on the freedom of expression guaranteed by the constitution by creating fear of the consequences of a charge under the impugned Section 84D.

As per Justice Okwany, the court also agreed that it was beyond its comprehension on how a court of law trying a criminal case could determine how a publication can have effect that tends to deprave not only persons who read it but also those likely to read or hear the matter embodied in it. In the courts view, such an all-encompassing and vague statutory provision is an instrument of repression for the protection and cover up of felonies and scandals committed by those in power therefore could have no place in a free and democratic society which is governed by the rule of law.

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