The resuscitation of criminal defamation in Kenya and the ensuing consequences

This case commentary examines the resuscitation of criminal defamation in Kenya under Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, (Chapter 79C). It contextualises this development within the broader digital transformation, where social media and online platforms have revolutionised freedom of expression, participatory discourse, and democratic accountability. The commentary assesses the constitutionality and proportionality of criminal sanctions for false publication and defamation in light of the Constitution of Kenya (2010) and international human rights standards. By analysing the High Court decisions of Jacqueline Okuta v AG (2017) and BAKE v AG (2020), the study illustrates the tension between state interests in regulating harmful digital content and the imperative to safeguard freedom of expression. The commentary highlights the risks of overbroad and vague legal provisions being used to suppress dissent, silence critics, and facilitate strategic lawsuits against public participation (SLAPPs), especially in politically sensitive contexts.