Over the past two years, the High Court has struck down several laws considered outdated—many dating back to the colonial era and the authoritarian period after independence—which were often used to suppress citizens’ freedoms.
From offenses such as “causing a disturbance” to attempted suicide, as well as provisions in the Government Proceedings Act and the Law of Succession, courts have found that some of these laws do not align with the standards of the Constitution of Kenya 2010.
These rulings are seen as a major victory for Kenyans, as they dismantle legal tools that had enabled abuse of state power.
In February this year, the High Court nullified a section of the Penal Code that created the offense of “causing a disturbance in a manner likely to breach the peace.”
The court found the provision to be overly broad and vague, making it difficult for citizens to know what conduct was lawful.
The case was filed by the Law Society of Kenya, which described the provision as a “colonial relic” that violated freedom of expression.
It followed the arrest of activist Morara Kebaso, who had been charged under the law after scrutinizing government projects.
Justice Lawrence Mugambi said the law was a “blunt instrument” that targeted both legitimate speech and actual criminal conduct.
He emphasized that there are already specific laws to deal with real threats to public safety without suppressing freedom of expression.
In another landmark ruling in September last year, the High Court struck down Section 226 of the Penal Code, which criminalized attempted suicide.
The court ruled that the law discriminated against people with mental health conditions and violated the right to dignity.
Organizations such as the Kenya National Commission on Human Rights said the law fueled stigma and discouraged those in need from seeking help.
Statistics indicate that about 1.9 million people in the country suffer from depression, highlighting the need for support rather than punishment.
The court also upheld farmers’ rights by nullifying provisions of the Seed Act that prohibited saving, exchanging, or selling indigenous seeds.
It found that the law favored large investors while disadvantaging small-scale farmers, thereby violating the right to food and livelihood.
In addition, in a win for men, the High Court struck down a provision in the Law of Succession that required a widower to prove dependency on his deceased wife in order to inherit her property, while widows were automatically entitled. The court ruled this was gender discrimination.
In another move, the court also nullified provisions of the Government Proceedings Act that restricted citizens from suing the government, describing them as colonial-era laws.
These decisions mark a significant shift in the country’s legal system, reinforcing the importance of protecting fundamental rights, equality, and freedoms as enshrined in the Constitution of 2010.
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