Online Censorship Halted
Kenya High Court Invalidates Website-Blocking Powers, Upholding Freedom of Expression
Key Points
The court described the NC4's power to block websites and apps without prior court orders as a 'prior restraint'—one of the most severe forms of censorship—warning that it invites arbitrary enforcement and a chilling effect on expression due to lack of procedural safeguards and evidentiary thresholds.
The judges noted Parliament had already created a separate enforcement mechanism that expressly involves the courts, meaning the contested provision could not be read as implying judicial oversight; the State also failed to demonstrate that the restriction met the Article 24 threshold for limiting rights.
The cyber harassment provision expanding the offence to include communications 'likely to cause' someone to commit suicide was deemed vague and overly broad, described as speculative, indeterminate, and untethered from objective criteria.
Privacy-ground challenges were dismissed on the basis of lack of precision, with the court focusing its ruling on blocking powers and harassment provisions rather than privacy protections.
Kenya's High Court has struck down two of the most contentious provisions of the Computer Misuse and Cybercrimes (Amendment) Act 2025, ruling them unconstitutional. Citizen Digital reported that Justice Patricia Nyaundi declared the law's grant of power to a state committee — the NC4 — to block websites and apps without a court order amounted to "prior restraint," one of the most severe forms of censorship.
The court also threw out an expanded cyber harassment offence that criminalised communications "likely to cause" someone to commit suicide, calling the standard vague, speculative, and impossible to pin to objective criteria. Nairobi Law Monthly noted that civil society groups celebrated the ruling, with petitioners declaring: "We have won."
State Committee Lost Power to Silence Websites Overnight
Under the 2025 Act, the National Computer and Cybercrimes Coordination Committee — known as the NC4 — could order internet service providers to block any website or app without going to a court first. Capital FM reported that Justice Nyaundi described this as a prior restraint, meaning speech is stopped before it can happen, rather than punished after the fact. The court called it one of the harshest tools a government can use against free expression.
The State argued that judicial oversight was "implied" even though the law never said so. The court rejected that outright. Tuko reported that Justice Nyaundi pointed to a separate section of the same Act that explicitly involves the courts — proof that Parliament knew how to require court approval and chose not to here. The State also failed to show the restriction met the Article 24 threshold, which demands that any limit on rights be clear, justified, and use the least restrictive means available.
Suicide-Linked Harassment Offence Thrown Out as Too Vague
The 2025 Act expanded cyber harassment to cover messages "likely to cause" the recipient to take their own life. The offence carried a fine of up to Sh20 million — roughly $150,000 — or up to 10 years in prison. Tuko reported that the court found this standard speculative and "untethered from objective criteria," since it punishes a speaker based on how a third party might react, not on any concrete harm caused.
Legal analysts noted the danger of such vague language. Because the test is subjective, authorities could use it to arrest journalists or critics by claiming their reporting was "distressing" to someone. The court said a criminal offence must be defined clearly enough that a person can know in advance what conduct is forbidden. This provision failed that basic test.
A Law Born From Cult Killings and Cyber Fraud Fears
The 2025 Amendment updated Kenya's original Computer Misuse and Cybercrimes Act of 2018. The government said the new law was needed to fight SIM-swap fraud, phishing, and what it called extreme religious cultism — a reference to the 2023 Shakahola Forest mass deaths. Kenya's Communications Authority recorded 2.54 billion cyber threat incidents in the first quarter of 2025 alone, a 201.7% jump from the same period in 2024. The country also lost an estimated $83 million to cybercrime in 2023, the second-highest figure in Africa at the time.
Critics argued the government's real goal was faster power to shut down platforms like Telegram or TikTok during protests, without waiting for a slow court process. In 2023 and 2024, the state faced accusations of throttling internet access during civil unrest. TV47 reported that Justice Mugambi had already suspended the most controversial sections in October 2025, giving courts time for a full constitutional review before the final July 2026 ruling.
Ruling Sets a High Bar for Future Digital Censorship in Kenya
The judgment stops the NC4 from acting as a parallel regulator alongside Kenya's Communications Authority. Any website blocking must now go through established judicial channels. Nairobi Law Monthly reported that the court specifically identified "anticipatory silence" — where people censor themselves out of fear — as a constitutional harm. That framing raises the bar for any future law that tries to restrict online speech.
Privacy-based challenges in the same petition were dismissed for lacking precision. The ruling did not address state surveillance or communications interception. A separate challenge to the 2018 Act on those grounds is still pending before the Supreme Court, meaning Kenya's digital legal framework remains unsettled. For now, the ruling is seen as a major win for the country's "Silicon Savannah" reputation, signalling to tech investors that no government committee can unilaterally switch off a platform.
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