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High CourtAllowedPetition No. E472 of 2023· [2024] KEHC 2 (KLR)

Odhiambo & another v Republic (Criminal Revision E807 of 2023) (Crim) [2024] KEHC 2 (KLR)

High Court of Kenya at Nairobi, Constitutional Division
14 February 2024
MJMugambi J
18,230 words in judgment
View original judgmentRead on Kenya Law Watch case
Editorial sample
·~73 min to read original · ~4 min brief

The bottom line

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Blanket internet shutdowns during protests are unconstitutional in Kenya.

What this practically means

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The High Court said the government cannot switch off the internet just because people are protesting. Free expression and access to information are protected rights, and any restriction must be narrow, published in advance, and justified.

Executive summary

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The petition challenged throttling of social media platforms during demonstrations in July 2023 para 4. KHRC argued the shutdown violated Articles 33, 34 and 35 para 11. The State responded that measures were taken for public order under the Communications Act para 18. The Court held that the Communications Authority lacked statutory authority for a blanket shutdown and that such measures fail the proportionality test in Article 24 paras 45–52. A permanent injunction was issued against future blanket shutdowns without prior judicial authorisation para 60.

Key legal issues

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01

Whether throttling social media constitutes a limitation of Article 33 rights.

Holding

Yes — access to digital platforms is integral to modern expression para 38.

Reasoning

The Court drew on UN Human Rights Council Resolution 32/13 and held that restrictions on internet access engage freedom of expression. Any limitation must satisfy Article 24 proportionality paras 35–42.

02

Whether the Communications Authority had statutory power to order a shutdown.

Holding

No — the Act does not authorise blanket throttling para 48.

Reasoning

Section 84W permits targeted interventions, not population-wide shutdowns. Delegated authority cannot exceed statutory bounds paras 45–50.

Legal principles established

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  • Digital expression is protected under Article 33 para 38.
  • Any limitation must be lawful, necessary and proportionate under Article 24 para 44.
  • Administrative power cannot exceed its statutory source para 48.

Court orders

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  1. 1.A declaration that the throttling violated Articles 33, 34 and 35.
  2. 2.A permanent injunction against future blanket shutdowns absent prior judicial authorisation.
  3. 3.Costs to the petitioner.

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 24, 33, 34, 35
  • Kenya Information and Communications ActSection 84W

Cases cited (1)

  • Coalition for Reform and Democracy v AG
    [2015] eKLR

Key timeline

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2023-07-12
Protests begin; social media throttling reported.
2023-07-28
KHRC files petition.
2024-02-14
Judgment delivered.

Practical implications

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For lawyers

Use proportionality framework

When challenging state restrictions on digital rights, anchor submissions in Article 24 and cite paragraphs 44-52 of this judgment for the proportionality standard.

For businesses

Telcos can push back

Licensees now have a precedent to refuse directives that lack clear statutory basis. Document all shutdown orders and seek legal review before compliance.

For individuals

Your digital speech is protected

If your access to online platforms is cut during protests or elections, you can seek constitutional remedies including damages and declaratory relief.

Frequently asked questions

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Is it legal to shut down the internet in Kenya?+

No. Blanket shutdowns without prior judicial authorisation are unconstitutional.

Which rights do internet shutdowns violate in Kenya?+

Articles 33 (expression), 34 (media) and 35 (access to information).

Can telcos be forced to throttle social media in Kenya?+

Only under narrow, judicially authorised orders. Blanket directives lack statutory backing.

What remedy is available for a digital rights violation?+

Declaratory relief, injunctions and constitutional damages under Article 23.

Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Odhiambo & another v Republic (Criminal Revision E807 of 2023)  (Crim) [2024] KEHC 2 (KLR)", Case Analysis (2024). Petition No. E472 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/2/eng@2024-02-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.