Republic v Kivuva (Criminal Case E633 of 2021) [2026] KEMC 84 (KLR)
The bottom line
#A Makindu court acquitted a man charged under section 95(1)(b) of the Penal Code because a High Court had declared that offence unconstitutional.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the accused person created a disturbance in a manner likely to cause a breach of the peace on the material day
- 2.Whether the prosecution has proven its case against the accused person to the required standard
- 3.Whether the court can proceed to decide on the guilt or otherwise of the accused person based on section 95(1)(b) of the Penal Code in view of the High Court's declaration that the provision is unconstitutional
Key legal issues
#Effect of a superior court's declaration of unconstitutionality (void ab initio) on a pending criminal prosecution under the same provision
The pending prosecution is fatally affected; the provision is deemed never to have existed, the court loses jurisdiction, and the accused must be acquitted.
Relying on constitutional supremacy under Article 2 and the doctrine of stare decisis, the magistrate held himself bound by the High Court's decision (Mwamuye J) that section 95(1)(b) is null and void ab initio. A criminal court derives jurisdiction from valid law; once the provision is void from inception, convicting under it would enforce a non-existent offence and produce a nullity. The proceedings were therefore terminated with an acquittal.
Ingredients of creating a disturbance likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code
Mere words are insufficient; the disturbance must be accompanied by an overt act that tends to incite violence or threaten a breach of the peace, and the breach must contemplate physical violence.
Drawing on Mule v Republic, R v Howell, Mumbe Musau v Republic and Fransisca Kiborus v Republic, the court construed section 95(1)(b) as requiring conduct likely to cause a breach of peace, which refers to wananchi going about their daily activities without interference. Words alone do not suffice; threats must be accompanied by an act causing apprehension of harm.
Standard of proof and the duty of care where a grudge exists between accused and complainant
The prosecution must prove guilt beyond reasonable doubt, and existing bad blood between the parties requires the court to scrutinise prosecution evidence with great caution.
The court restated the beyond-reasonable-doubt standard, grounding it on the societal value that convicting an innocent person is worse than letting a guilty one go free, and citing Ayub Muchele v Republic on the weight to be given to animosity or its absence in assessing witness credibility.
Legal principles established
#- Where an accused is charged under a statutory provision later declared unconstitutional, null and void ab initio, the effect on a pending criminal case is fatal to the prosecution; the provision is treated as never having existed and the court cannot convict under it.
- Once a penal provision is void ab initio, the criminal court loses jurisdiction to determine the offence and any conviction would be a nullity.
- Mere words do not constitute the offence of creating a disturbance likely to cause a breach of the peace; the words must be accompanied by an overt act tending to incite violence or threaten a breach of the peace.
- Where there is an existing grudge or bad blood between parties, the court must consider the prosecution evidence with great caution as parties are known to resort to criminal sanctions to settle old scores.
Court orders
#- 1.The accused person is found Not Guilty of the offence of creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code
- 2.The accused person is hereby acquitted in respect of the charge
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Criminal jurisdiction under the Penal Code and Criminal Procedure Code; jurisdiction founded on valid law - a court 'derives its jurisdiction from valid law'
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 accused person is found Not Guilty of the Offence of Creating a disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal code;
The accused person is hereby acquitted in respect of the charge.
A criminal court derives its jurisdiction from valid law. Once the provision is void, the court effectively loses jurisdiction to determine the offence.
By virtue of the doctrine of stare decisis, I am bound by the decisions of the High Court.
A declaration be and is hereby issued that Section 95(1)(b) of the Penal Code, Cap 63 of the Laws of Kenya is inconsistent with and in contravention of Articles 33, 50(2)(n) and 24 of the Constitution of Kenya, 2010, and is therefore unconstitutional, null and void ab initio;
Issues in the judgment
#The judgment's caption/header and case number are not reproduced in the text supplied; the case number must be retrieved from the official record.
The judgment quotes the High Court decision as [2026] KEHC 1486 (KLR) and the present judgment is dated 2026-04-09; the internal chronology should be verified against the official record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kivuva (Criminal Case E633 of 2021) [2026] KEMC 84 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/84/eng@2026-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.