After the judgement of our Computer Misuse and Cybercrime case was rendered on 20th February 2020, we filed a Notice of Appeal, on the 21st February 2020. We had to file it remotely due to the COVID 19 crisis. Our Court of Appeal application, however, was not certified urgent. The court, also stated that it has a backlog of cases and therefore the appeal may take some time to be heard.
We also filed a Notice of Motion Application under Certificate of Urgency to have the judgement stayed before the appeal was heard. Unfortunately, the court failed to certify the application urgent. We filed a reference to have the application set down for hearing. During this hearing, we shall argue that the application is urgent. We are, however, yet to receive a response from the court on this.
The Law Society of Kenya also filed a Notice of Appeal and an application similar to ours. The court heard their application and unfortunately determined that there was no urgency to stay the judgement.
In his judgement, Justice Makau had found that the 26 sections of the Cybercrimes Law that we had contested were constitutional and therefore dismissed the whole case entirely. The cybercrimes case is now in force and the 26 sections that we had contested, and that had been suspended, were lifted and declared legal.
Since then, several Kenyans, especially online content creators have been arrested and charged with provisions such as publication of false information. These arrests are unconstitutional as the Constitution guarantees freedom of speech, and freedom to access and impart information for all Kenyans.