Not so fast: Why court has stripped State of its powers to shut down websites

For nine months, President William Ruto's administration fought to keep a digital sword hanging over Kenyans' phones and keyboards. But on Thursday, a Milimani judge declared that the government has no power to switch off websites without a court order.

In a judgement that hands social media users, journalists and bloggers a constitutional win, Justice Patricia Nyaundi struck down two of the most contested provisions in the Computer Misuse and Cybercrimes (Amendment) Act, 2025, after finding that they are unconstitutional, invalid and of no legal effect  

Among them is Section 6(1) (jA), which allowed the government to shut down websites at will, and Section 27(1)(b), a vaguely worded offence that criminalised communication likely to cause another person to commit suicide.

The High Court verdict brings to an end a legal battle that began the same week the law was signed, hours after former Prime Minister Raila Odinga's death, a coincidence petitioners have long argued was no accident of timing.

At the centre of the case was Section 6(1) (jA), which armed the National Computer and Cybercrimes Coordination Committee (NC4) with the power to order any website or app rendered inaccessible if it was deemed to promote unlawful activity, sexual content involving minors, terrorism or religious extremism, all without prior court approval.

The judge held that the website-blocking provision unlawfully restricted constitutional freedoms by granting sweeping censorship powers to an administrative body without judicial oversight.

"The amendment confers upon an administrative body a sweeping authority to impose prior restraint, the most severe form of censorship, in the absence of procedural safeguards and evidential thresholds," Justice Nyaundi ruled.

She further warned that the provision invites arbitrary enforcement and provides a chilling effect on legitimate expression, compelling individuals and platforms to self-censor out of fear of sanction.

The judge found the State had failed the constitutional test under Article 24, ruling the provision restricts the freedoms guaranteed under Articles 32, 33 and 34 without meeting the strict justification the Constitution demands before rights can be limited.

On Section 27(1)(b), which made it an offence to send a communication "likely to cause another person to commit suicide", Justice Nyaundi was equally firm, stating that the provision created a vague and overly broad offence that failed to meet constitutional standards for criminal law.    

Petitioners' gospel artist Reuben Kigame, Kirinyaga Woman Representative Jane Njeri, Embakasi East MP Babu Owino and others argued the wording was so open-ended that ordinary online speech, grief, dark humour, even journalism, could be swept into a criminal net.

"The impugned provision... introduces a speculative, indeterminate and wholly subjective basis for criminal liability," the judge held, finding it fell foul of the constitutional principle of legality under Article 25(c) and 52(b), which demand clarity, precision and foreseeability in criminal laws.

In reaching that conclusion, Justice Nyaundi leaned heavily on the Court of Appeal's earlier demolition of near-identical wording in the original 2018 Act, where judges famously likened the offence provisions to "unguided missiles" capable of ensnaring innocent citizens as easily as wrongdoers.

However, the court rejected arguments that Parliament acted unconstitutionally by excluding the Senate from the legislative process, finding the amendments did not concern county governments.

It also held that the enactment process satisfied constitutional requirements on public participation.

The judge noted the bill was published on August 9, 2024 and that Parliament's communications committee issued public notices in February inviting submissions before the law was passed, concluding the legislature discharged its obligations under Articles 10 and 118 of the Constitution.

Dozens of other sections, including provisions numbered 3, 5, 16, 17 and 22, survived the legal challenge on res judicata grounds, the court finding they had already been tested and upheld by the Court of Appeal in the Bloggers Association of Kenya case.

The ruling caps a turbulent run for a law that has drawn fire since its draft stage.

 Human Rights Watch, including LSK and Katiba Institute, had warned the amendments risk criminalising legitimate online speech, while former Chief Justice David Maraga branded the law a betrayal of Kenyans that risked abuse, censorship and political manipulation.

The amendments were passed by Parliament and assented to by President Ruto on October 15, 2025, hours after Odinga's death, fuelling accusations that the law was rushed through to dodge scrutiny.

With yesterday's ruling, the "kill switch" is gone and the suicide-speech offence is dead, but the bulk of the law remains firmly on the books, including the expanded powers of the National Computer and Cybercrimes Coordination Committee (NC4) to flag websites and applications promoting unlawful activities and religious extremism.