Kahiu v Creative Economy Working Group & 6 others (Civil Appeal E378 of 2020) [2026] KECA 132 (KLR)
The bottom line
#Kenya's Court of Appeal found most film censorship laws constitutional, but ruled that banning a film for merely depicting homosexuality is unjustified.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an interested party can properly raise an objection on jurisdiction when the main parties have not
- 2.Whether the issue of jurisdiction was res judicata in view of the earlier ruling by Okwany, J
- 3.Whether the High Court erred in finding that its jurisdiction was prematurely invoked due to non-exhaustion of the appeal mechanism under section 29 of the Films and Stage Plays Act
- 4.Whether the limitations on the freedom of expression are confined to Article 33(2) or extend to limitations permissible under Article 24
- 5.Whether the impugned provisions of the Films and Stage Plays Act (sections 4, 6, 7, 8, 9, 12, 13, 16, 30 and 35) and the Kenya Film Classification Guidelines, 2012 are unconstitutional
- 6.Whether the Board's decision to ban the film 'Rafiki' was a constitutional exercise of power
- 7.Whether the court should determine damages raised in the 1st respondents' cross-appeal
Key legal issues
#Scope of permissible limitation of the freedom of expression
Article 33(2) is not exhaustive; other limitations are permissible but only under Article 24, applying the proportionality test.
The Court noted that the freedom of expression is absent from the non-derogable rights in Article 25, showing the Constitution contemplates further limitation beyond the internal content-based restrictions of Article 33(2). However, such limitation must pass the Article 24(1) test of reasonableness and justifiability, drawing on the Canadian Oakes test and South African Manamela proportionality analysis, and the State bears the onus under Article 24(3).
Exhaustion of statutory remedies and jurisdiction
The High Court's finding of premature jurisdiction was wrong; the section 29 appeal mechanism was inadequate for a constitutional challenge to the validity of the statute itself.
Although statutory appeal mechanisms should generally be exhausted, constitutional petitions challenging the constitutionality of statutory provisions cannot be adequately resolved by an appeal to a Minister, who lacks power to declare law unconstitutional. The Court applied the Supreme Court's nuanced approach in Nicholus, holding the grievance was genuine and could only be heard by the High Court.
Interested party raising jurisdiction and res judicata
An interested party may alert the court to a jurisdictional defect, but the earlier ruling by Okwany, J on jurisdiction was final and the trial judge erred in revisiting it.
Jurisdiction is fundamental and may be raised by any party or by the court itself, so the 6th respondent's objection was not impermissible issue-framing under Methodist Church. However, since no facts had changed since Okwany, J's interlocutory ruling finding wide jurisdiction, and the issue amounted to a preliminary objection answered with finality, the trial court's contrary finding violated res judicata.
Constitutionality of the impugned provisions of the Act
Sections 4, 6, 7, 8, 12, 13, 16 (except 16(3)), 30 and 35 are constitutional; section 9(1)'s use of force beyond safety/cruelty circumstances and section 16(3)'s retention of excised parts are unconstitutional.
The Court applied the Article 24 proportionality test provision by provision. It held that licensing and censorship serve a legitimate aim, that mens rea is implied in penal provisions, that discretion must be exercised judiciously and is checked by appeals and judicial review, and that delegated regulation is permissible under the Statutory Instruments Act. However, the extended power to use force and the retention of excised film parts failed the less-restrictive-means requirement under Article 24(3).
The Guidelines and the Board's ban of 'Rafiki'
The ungazetted Guidelines' invalidity took effect after the Board failed to regularize them within one year, rendering the challenge moot; a ban of a film merely depicting homosexuality is disproportionate.
Since the Board never brought the Guidelines under the Statutory Instruments Act, the declaration of invalidity came into effect and the appeal on the Guidelines became moot. The Court nonetheless held, using the drug-depiction analogy, that banning a film that merely depicts homosexual lifestyle without promoting it is disproportionate; the Board could have rated it 'adults only'. The final decision on the ban is left to the statutory appeal process.
Legal principles established
#- Limitations on the freedom of expression are not confined to the internal limits of Article 33(2); additional limitations may be imposed but only within the strict scope and ambit of Article 24.
- An interested party may raise a jurisdictional objection even where the main parties have not; jurisdiction is so fundamental that a court may raise it suo moto.
- An interlocutory ruling on a preliminary objection that determined jurisdiction with finality on unchanged facts binds the court in the same proceedings and cannot be revisited, per the doctrine of res judicata.
- The availability of an alternative statutory remedy does not necessarily bar constitutional relief; where the alternative remedy is inadequate for the grievance (e.g. a Minister cannot declare a law unconstitutional), the High Court may entertain the petition.
- Mens rea remains a necessary element of statutory offences unless the provision expressly and unequivocally excludes it; mere omission of words like 'knowingly' does not create an absolute offence.
- An outright ban of a film that merely depicts, without promoting or glamorizing, homosexual lifestyle is a disproportionate limitation on the freedom of expression; such a film is approvable subject to rating under section 17 of the Act.
- The Board's power to use force under section 9(1) of the Act is constitutional only where safety of persons or property is endangered or where there is cruelty or unnecessary suffering to an animal, and only after a film maker refuses to heed a stop order.
Court orders
#- 1.Declared that the provisions of section 9(1) of the Film and Stage Plays Act permitting the use of force other than where the safety of any person or property is endangered or where there is cruelty or unnecessary suffering to an animal are in contravention of the Constitution and null and void
- 2.Declared that the provision of section 16(3) of the Film and Stage Plays Act permitting the Board to retain in its possession excised parts of a film is in contravention of the Constitution and null and void
- 3.Declared that the declaration of invalidity of the ungazetted Kenya Film Classification Guidelines, 2012 has come into effect since the Board failed to gazette them within the one-year window granted by the High Court
- 4.Granted the appellant liberty to appeal against the decision of the Board of 26th April 2018 under section 29 of the Film and Stage Plays Act within 30 days of the judgment
- 5.Ordered that each party shall bear its own costs in respect of the Petition in the High Court and the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition (film 'Rafiki' petition; judgment dated 26th March 2020, delivered 29th April 2020, Makau, J)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a decision of the High Court in a constitutional petition (Articles 164 and 23, Constitution of Kenya)
Relief refused
#Damages claimed in the 1st respondents' cross-appeal
The appellant, who would have been entitled to the prayer, chose not to press it in the appeal
A final determination by this Court on the constitutionality of the Board's ban of 'Rafiki'
The Court left the final call to the statutory appellate process under section 29 of the Act
Nullification of the remaining impugned provisions of the Act (sections 4, 6, 7, 8, 12, 13, 16 (except 16(3)), 30 and 35)
They were held to meet the constitutional tests and not to violate the freedom of expression
Costs
Each party shall bear its own costs in respect to the Petition in the High Court and this Appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal succeeds only to the extent that we declare;
The provisions of section 9(1) of the Film and Stage Plays Act that permit the use of force other than in circumstances where the safety of any person or property is endangered or where there is cruelty or unnecessary suffering to an animal to be are in contravention of the Constitution and, therefore, null and void.
The provision of section16(3) of the Film and Stage Plays Act that permits the Board to retain in its possession excised parts of a film is in contravention of the Constitution and, therefore, null and void.
Each party shall bear its own costs in respect to the Petition in the High Court and this Appeal.
outrightly banning a film that only depicts homosexual lifestyle without promoting or glamorizing it is a disproportionate limitation to the right of freedom of expression.
other limitations to the freedom of expression can be imposed but only within the strict scope and ambit of Article 24.
There was a genuine and bonafide grievance that could only be heard and determined by the High Court.
Issues in the judgment
#Paragraph numbering is erratic: a paragraph is numbered '(47)' immediately after paragraph 38, and a later paragraph after 81 is numbered '2.', indicating copy/numbering defects in the judgment text.
The judgment contains typographical errors in quoted material (e.g. 'ofiensive' for 'offensive'), and the trial court's order (c) refers to 'section 5(i) (ii)(iii) and (iv) as well as 63(5)' of the Guidelines while the pleadings refer to sections 5(i)-(v) and 6.3.5 - a discrepancy in referencing the Guidelines provisions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahiu v Creative Economy Working Group & 6 others (Civil Appeal E378 of 2020) [2026] KECA 132 (KLR)", Case Analysis (2026). Court of Appeal Civil Appeal (from High Court Constitutional Petition concerning the film 'Rafiki'). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/132/eng@2026-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.