By Andrew Kariuki
The High Court has declared Section 95(1)(b) of the Penal Code unconstitutional, effectively invalidating the offence of “creating disturbance in a manner likely to cause a breach of peace.”
In a judgment delivered by Justice Bahati Mwamuye, the court found that the provision is inconsistent with the Constitution, terming it overly broad, vague and incapable of precise interpretation.
The judge held that the section failed to meet constitutional standards of clarity and legality required in criminal law.
“A declaration be and is hereby issued that Section 95(1)(b) of the Penal Code is inconsistent with the Constitution and is therefore unconstitutional, null and void,” the court ruled.
Justice Mwamuye further directed law enforcement agencies to immediately cease enforcing the impugned provision.
Before it was struck down, the offence was classified as a misdemeanor and carried a penalty of up to six months’ imprisonment.
The petition challenging the section was filed by the Law Society of Kenya (LSK), which argued that the offence was a colonial-era relic that had been used to curtail the constitutional right to freedom of expression.
The society contended that the vague wording of the law left room for arbitrary arrests and prosecutions.
In the same decision, the court quashed criminal proceedings that had been instituted against activist Morara Kebaso.
Kebaso had been arrested on October 8 last year and booked at Lang’ata Police Station after monitoring government projects.
He was informed that he would be charged under the now-invalidated provision.
By striking down the section, the court reaffirmed constitutional protections on freedom of expression and underscored the requirement that criminal laws must be clear, specific and consistent with the Bill of Rights.
