A landmark ruling made by the High Court in Nairobi has declared section 66 of the penal code as outdated noting that it violated the Constitution of Kenya.
In a statement, Justice Weldon Kori ruled that section 66 of the penal code was retrogressive.
The code states that 'any person who publishes any false statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace is guilty of a misdemeanor.'
In his ruling, Korir observed that it made it difficult for people to express themselves properly as long as the code was in action.
The ruling secured a major win for Kenyans, particularly journalists and social media users who are often intimidated with arrests while practicing their freedom of expression.
“It is difficult for one to express himself or herself without violating the said provision,” stated the judge.
The ruling, which emerged from a petition filed by blogger Cyprian Nyakundi, also provided that individuals who were found guilty of committing the offence were liable to a custodial sentence of up to two years.
The law further noted that those who committed the offence would be treated as defendants under the alarming publication cause.
"It shall be a defence to a charge under [the “alarming publications” clause] if the accused proves that, prior to publication, he took such measures to verify the accuracy of the statement, rumour or report as to lead him reasonably to believe that it was true," it continued.
Through out his career, blogger Nyakundi has faced numerous defamation cases and has spent nights behind bars after several arrest.
In 2020, Makueni Governor Kivutha Kibwana sued the blogger over defamation after the former was dissatisfied with a report the latter published touching on his lifestyle.
Cabinet Secretary Fred Matiang'i had also sued Nyakundi for defamation in 2018 after publishing offensive information. The suit led to Nyakundi being barred from using his own social media accounts.
In March 2021, Nyakundi won a case against the Directorate of Criminal Investigations (DCI) in which he was accused of plotting to extort a bank of Ksh17.5 million.
The judge at the time observed that DCI had entrapped the blogger by illegally obtaining the evidence against him. The judge further stated that the evidence was not admissible in the court of law.
Detectives arrested Nyakundi in January 2020 on alleged charges of extortion amounting into millions of shillings.
