Geoffrey Andare v Attorney General & 2 others [2016] eKLR
the Constitution whose mandate includes representation of the government in civil suits, and the
Director of Public Prosecutions (DPP), the constitutional office established under Article 157 of
the Constitution with the mandate to institute and oversee all criminal prosecutions in Kenya.
3. The petition was precipitated by the arraignment of the petitioner on 7th April, 2015 in Milimani
Criminal Case No. 610 of 2015, Republic vs Geoffrey Andare. The petitioner was charged
under section 29 of the Act with the offence of improper use of licensed telecommunication
system contrary to section 29(b) of the Act. The particulars of the offence were that he, through
his Facebook account, posted grossly offensive electronic mail with regard to the complainant, a
Mr. Titus Kuria, in which he stated that “you don’t have to sleep with the young vulnerable girls to
award them opportunities to go to school, that is so wrong! Shame on you” knowing it to be false
and with the intention of causing annoyance to the complainant.
Procedural History
4. The petitioner approached this court in person on 21st April 2015 with an urgent application
seeking to stop his prosecution in the said criminal case. He was directed to serve the petition
and application on the respondents, and the matter was scheduled for directions on 5th May
2015.
5. When the matter came up before the Court on that date, Article 19 East Africa, a nongovernmental organization which stated that it is dedicated to protection of freedom of
expression, applied and was permitted to participate in the matter as an interested party.
Directions were also given with respect to the filing of responses and submissions, and the
proceedings in Criminal Case No 610 of 2015 were stayed pending hearing and determination of
the petition or further orders of the court.
6. On 26th June 2015, the matter was fixed for hearing on the 20th of July 2015, but on this day, the
petitioner, who had instructed Learned Counsel, Mr. Ongoya, to act for him, applied for time to rearrange his authorities before proceeding with the hearing. The matter was then re-scheduled for
hearing on 22nd September 2015.
7. When the matter came up for hearing on 22nd September 2015, Mr. Kiprono, who was acting for
the interested party and holding brief for Mr. Ongoya for the petitioner, indicated that Mr. Ongoya
was requesting for an adjournment as he was bereaved, an application that was not opposed by
the respondents. The matter was in the circumstances taken out of the hearing list and
rescheduled for hearing on 11th November 2015.
8. On this day, however, Mr. Ongoya again sought an adjournment through a Mr. Githindu, this time
on the basis that he was in Malindi facilitating a workshop for the Ethics and Anti-corruption
Commission. The respondents requested the Court to give a judgment on the basis of the
submissions on record, noting that this was the third time that the petitioner was requesting for an
adjournment of the hearing of his petition. This judgment therefore pertains to the issues raised
in the petition and the arguments for and against the petition as are contained in the written
submissions of the parties.
The Petitioner’s Case
9. The petitioner’s case is that section 29 of the Act is vague and over-broad especially with regard
to the meaning of ‘grossly offensive’, ‘indecent’, ‘obscene ‘menacing’, ‘causing annoyance’
‘inconvenience’ or ‘needless anxiety’. He contends that the section offends the principle of
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