Geoffrey Andare v Attorney General & 2 others [2016] eKLR
c. Flowing from prayer (b), an injunction barring the 2nd respondent from carrying on with
the prosecution of the petitioner in the proceedings in Milimani Criminal Case No. 610 of
2015; and
d. An order that each party bears its costs in this petition brought partly in the public
interest petition and in view of the subject matter.
The Case for the Interested Party
23. The interested party supported the petition and filed submissions dated 12th June, 2015. The
interested party relied on the decision in Marbury vs Madison 5 U. S 137 (1803) to submit that
legality is a fundamental rule of criminal law that espouses that nothing is a crime unless it is
clearly forbidden in law. It was its submission further that the principle of legality is not only a core
value or human right but also a fundamental defence in criminal prosecution that ensures no
crime exists without a legal ground. Accordingly, in its view, section 29 of the Act is vague and
overreaching, is thereby lacking in certainty, and it restricts the right to freedom of expression. Its
submission was therefore that the section is not reasonable and justified in a society that has
proper respect for the rights and freedoms of the individual.
24. The interested party further observed that the words used in the section are not defined, thereby
leaving room for various interpretations. In its view, none of the terms used in the section would
have a uniform meaning or interpretation among ordinary citizens because what is obscene to
one person may be perfectly normal to another.
25. Article 19 relied on the decision in Grayned vs City of Rockford (1972) 408 US 104; and BlackClawson International Ltd vs Papierwere Waldhof Aschaffenberg AG (1975) 2 WLR 513,
[1975] 1AII ER 810, [1975] UKHL 2, 638 to submit that criminal laws must have a degree of
certainty. In its view, section 29 of the Act fails to meet the legal requirements that an offence
must be clearly defined in law because an ordinary man or woman cannot know from the wording
of the section what acts and omissions will make him or her liable.
26. Article 19 therefore submitted, on the authority of the decision in Aids Law Project vs Attorney
General and 3 Others - Petition No. 97 of 2010 that to retain the section in the statute books
would lead to an undesirable situation of the retention of legislation that provides for vague
criminal offences which leave it to the court’s subjective assessment on whether a defendant is
to be convicted or acquitted.
27. Article 19 was further of the view that the undefined terms in the section net a very large amount
of protected and innocent speech. It submitted by way of illustration that a person may discuss or
even advocate by means of writing disseminated over the internet information or licenced
telecommunications device content that may be a point of view pertaining to governmental,
literary, scientific or other matters which may be offensive to certain sections of society. It was its
submission that the section’s net is cast so widely that virtually any opinion on any subject would
be covered by it, as any serious opinion dissenting with the mores of the day would be caught
within its net. Were the section to remain in the statute books, the chilling effect on free speech is
immeasurable.
28. Article 19 reiterated the position that in criminal law, a central ingredient to a crime is the
requirement of a union of actus reus and mens rea. The mens rea requirement is the essential
protection for the innocent while those who do not intend to commit wrongful acts should not
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