The Bloggers Association of Kenya (BAKE), alongside the Law Society of Kenya (LSK), Article 19 Eastern Africa and the Kenya Union of Journalists (KUJ), has filed a Petition of Appeal at the Supreme Court challenging sections of the Computer Misuse and Cybercrimes Act, 2018, on grounds of state surveillance and digital privacy.
According to the petitioners, the appeal seeks to contest “specific provisions of the Computer Misuse and Cybercrimes Act (CMCA) 2018 regarding state surveillance and digital privacy.”
The legal challenge follows a Court of Appeal judgment that removed some parts of the law but left others intact. The petitioners say the new appeal seeks clarity on whether the remaining sections are consistent with constitutional guarantees on privacy and freedom of expression.
The groups say the petition “follows a Court of Appeal ruling that struck down sections related to false publications but upheld several other investigative and penal provisions.” They are now asking the Supreme Court to determine “whether these remaining sections align with the 2010 Constitution’s protections on privacy and free expression.”
At the centre of the appeal are Sections 48 to 53 of the Act, which deal with State access to and monitoring of digital data. The petition raises concerns about the breadth of the powers granted under the law and the safeguards available to citizens.
On interception of communications, the petition notes that “Section 53 allows for the interception of content data (such as emails and voice calls) for up to nine months.”
It also challenges the scope of search powers under Section 48, arguing that “Section 48 permits law enforcement to search any individual present on a premises during a data-related search warrant execution.”
The coalition further takes issue with Section 50, saying it weakens the courts’ ability to independently assess applications for production orders. In the petitioners’ view, “Section 50 mandates that courts issue production orders upon application,” a provision they argue “limits the judiciary’s evaluative role.”
The appeal also asks the Supreme Court to make a final determination on Section 37 of the Act, which deals with the wrongful distribution of intimate images. The petitioners say they are seeking “a final ruling on Section 37 (Wrongful distribution of intimate images), noting that the Court of Appeal did not issue a definitive judgment on its validity.”
They also want the apex court to review Sections 27 and 28 on cyber-harassment and cybersquatting. According to the petition, those provisions “require further judicial scrutiny to ensure their broad phrasing does not inadvertently criminalize fair use, parody, or legitimate dissent.”
The petitioners are asking the court either to strike out the contested sections or to introduce safeguards that would make them constitutionally compliant. Among the measures proposed are “Enhanced Judicial Oversight” through “rigorous, evidence-based standards for issuing warrants and production orders.”
They are also seeking “Notification Requirements,” including “a mandatory protocol to inform individuals after they have been subject to surveillance, facilitating transparency and legal accountability.”
The Supreme Court has already issued directions on the matter through Deputy Registrar Hon. Alice Mukenga. The petition is to be served on the Director of Public Prosecutions, the Attorney General, the Inspector General of Police and the Speaker of the National Assembly by April 20, 2026.
The respondents have until May 4, 2026, to file their responses, while a virtual mention is scheduled for May 11, 2026, at 9am to set directions for the hearing.
The appeal is expected to shape the next phase of Kenya’s legal debate on digital rights, privacy and the limits of State surveillance in the online space.
