Blogger Nyakundi wins first round in Waiguru, Sonko defamation case

The High Court has quashed Section 84(d) of the Kenya Information Communication Act that relates to the publishing of obscene information on social media.

Blogger Cyprian Nyakundi had challenged the decision by the state to charge him for allegedly writing derogatory statements against Kirinyaga Governor Ann Waiguru and her Nairobi counterpart Mike Sonko.

Nyakundi was charged last year. He was also in court for writing derogatory statements against former KPLC boss Ken Tarus.

The section prefers a fine not exceeding Sh200,000 or imprisonment for a term not exceeding two years, or both for any person "who publishes or transmits or causes to be published in electronic form" derogatory content. 

The Act was introduced in 2009 to regulate what is published on electronic media.

The decision means that all the charges against Nyakundi that relate to that section have been dropped unless the state appeals against the ruling.

Justice Wilfrida Okwany, while declaring Section 84(d) unconstitutional, said it must be appreciated that it is only through criticism that leaders understand that their actions are untoward.

She said circulation of ideas should not be prohibited, adding that the section is vague and broad and violates the Constitution and is, therefore, invalid. She said its enforcement is unconstitutional and violates Nyakundi’s rights.

Okwany said the section provides for an offence in such broad terms that the accused cannot answer.

“The law does not explain who and how will determine who will be influenced by the matter,” she ruled.

A law that creates an offence should not be vague and should enable the accused to defend themselves, she added.

The judge emphasised the significance of the freedom of expression as protected by the Constitution. She said that the court had considered the section.

Nyakundi was charged before Milimani and Kiambu courts in relation to the section. He had argued that the section cannot stand the Constitution, which expressly protects his freedom of expression.

(Edited by F'Orieny)