Geoffrey Andare v Attorney General & 2 others [2016] eKLR
Public Prosecutions or the authority charged with the prosecution of criminal offences to
investigate and undertake prosecution in the exercise of the discretion conferred upon that
office. The mere fact that the intended or ongoing criminal proceedings are in all likelihood
bound to fail, it has been held time and again, is not a ground for halting those proceedings. That
a petitioner has a good defence in the criminal process is a ground that ought not to be relied
upon by a Court in order to halt criminal process undertaken bona fides since that defence is
always open to the Petitioner in those proceedings. However, if the Petitioner demonstrates that
the intended or ongoing criminal proceedings constitute an abuse of process and are being
carried out in breach of or threatened breach of the Petitioner’s Constitutional rights, the Court
will not hesitate in putting a halt to such proceedings.”
61. In that case, the Court also cited with approval the words of the court in Kuria & 3 Others vs
Attorney General [2002] 2 KLR 69 in which the High Court had observed that:
“The Court has power and indeed the duty to prohibit the continuation of the criminal
prosecution if extraneous matters divorced from the goals of justice guide their instigation. It is a
duty of the court to ensure that its process does not degenerate into tools for personal scoresettling or vilification on issues not pertaining to that which the system was even formed to
perform... A stay (by an order of prohibition) should be granted where compelling an accused to
stand trial would violate the fundamental principles of justice which underlie the society’s
senses of fair play and decency and/or where the proceedings are oppressive or vexatious... The
machinery of criminal justice is not to be allowed to become a pawn in personal civil feuds and
individual vendetta. It is through this mandate of the court to guard its process from being
abused or misused or manipulated for ulterior motives…”
62. I am satisfied that in the present case, should the Court find that the provisions of section 29 of
the Act are unconstitutional, and that therefore the prosecution of the petitioner under its
provisions violates or threatens to violate his constitutional rights, then the Court has the
jurisdiction to grant the orders that he seeks. I will now turn to consider the substantive issue
raised in the petition, the constitutionality of the said section.
Whether Section 29 of the Kenya Information and Communication Act is Unconstitutional
63. The petitioner and interested party have argued that section 29 of the Act is unconstitutional.
Their argument is that the section is vague and overbroad, it has a chilling effect on the
guarantee to freedom of expression, and it creates an offence without creating the mens rea
element on the part of the accused person. The AG and DPP deny these allegations, with the AG
maintaining that the section is constitutional and a permissible limitation under Article 24 of the
Constitution.
64. Before embarking on an analysis and determination of this issue, it is useful to consider what the
duty of the court is in determining whether the impugned provision is unconstitutional, and the
principles that should guide the court in making its determination.
Applicable Principles
65. In U.S vs Butler, 297 U.S. 1[1936], the Court expressed the duty of a Court in determining the
constitutionality of a provision of a statute in the following terms:
“When an Act of Congress is appropriately challenged in the courts as not conforming to the
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