Blogger Cyprian Nyakundi is back in the news and this time he has won a case against section 66 of the penal code after the High court of Kenya ruled it unconstitutional.
In the landmark ruling by Justice Weldon Korir, court papers seen by iFreedoms.co.ke revealed that Nyakundi was accused of an alarming publication contrary to section 66 of the Penal Code as read with section 36 of the penal code.”
The publication in question is a tweet on 11th May 2018 that read: “Kenya Power is being looted by Jubilee through Ken Tarus who got a job as the Managing Director (MD) with fake papers. This country is led by criminals”
According to the court papers, the rumor was likely to cause fear and alarm to the public and the penal code criminalises publishing of ‘alarming publications’ that are likely to cause panic and fear.
Blogger Cyprian Nyakundi went to court to challenge the constitution after the prosecution pressed criminal charges against him for publishing alarming publication.
“It is difficult for one to express himself or herself without violating the said provision,” Justice Weldon Korir ruled.
The judge noted that the provision is too retrogressive for a country that prides itself as democratic.
The Penal 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.”
A person found to have committed this offense is, on conviction, subject to a custodial sentence not exceeding two years and/or a fine.
The Code further states that “[i]t shall be a defense 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.”
The ruling is a major win for bloggers, journalists, social media users and Kenyans in general because they are often intimidated with arrests while practicing their freedom of expression.
The ruling emerged from a petition filed by blogger Cyprian Nyakundi, and in this instance it was ruled that,”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,”
Nyakundi is no stranger to controversy as he has also faced other defamation suits in the past and a good case in point is in 2020, Makueni Governor Kivutha Kibwana sued him over defamation after the former was dissatisfied with a report the latter published touching on his lifestyle.
Cabinet Secretary Fred Matiang’i also dragged the blogger to court for defamation in 2018 after he published offensive information. The suit caused Nyakundi to lose his social media accounts.
In another landmark case, in March 2021, Nyakundi won a case against the Directorate of Criminal Investigations (DCI) where the accusations leveled against him were that he had hatched a plot to extort a bank of Ksh17.5 million.
The judge at the time observed that DCI did not obtain evidence against the blogger legally and that it was also not admissible in court.
Below is the full ruling
NAI HC C&HR DIVISION PETITION NO. 3 OF 2019 CYPRIAN ANDAMA V DIRECTOR OF PUBLIC PROSECUTIONS & 3 OTHERS