Court Bars Police from Arresting Kenyans Over ‘Disturbance’

The High Court has ordered law enforcement to stop enforcing the Penal Code provision that prohibits creating a disturbance likely to cause a breach of peace, and declared the provision unconstitutional, in a landmark decision.

In a ruling on February 12, the court struck down section 95(1)(b) of the Penal Code and now prohibits police from arresting Kenyans based on allegations of being a disturbance likely to cause a breach of peace.

The judges found this provision to be too broad and too vague to be capable of precise, legally based interpretation.

Additionally, the court held that the impugned section was “impossible to pin down exactly,” noting that its ambiguity created room for arbitrary enforcement.

For decades, causing a disturbance under the provision had been classified as a misdemeanour carrying a penalty of up to six months’ imprisonment.

Court Finds Provision Unconstitutional

The petition challenging Section 95(1)(b) was filed by the Law Society of Kenya (LSK), which argued that the offence infringed on rights guaranteed under Article 33 of the Constitution of Kenya, 2010.

The right to freedom of expression is protected under Article 33, which is one of the core values in Kenya’s constitutional democracy.

When the High Court declared the section to be unconstitutional, it also confirmed that all criminal statutes must meet the clarity and precision threshold of constitutional standards.

The High Court found that a law that is so poorly written leaves the citizenry open to arrest and prosecution based on arbitrary actions, contrary to the rule of law.

The court ruling will eliminate a long-standing means of police officers using this section of the law to justify arresting individuals in an area with no specific evidence of criminal activity that is clearly identified, but simply because they were acting in a disorderly manner.

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Arrest and Attempt to Challenge the Law by Morara Kebaso

The urgency of Kebaso’s legal challenge rose with the complicating circumstances of his arrest, especially when he was arrested around October 8, 2025, period, when he was supposed to undertake his responsibilities of monitoring government projects.

After his arrest, Kebaso was subsequently taken to the Langata police station.

According to court filings, he was informed that he would be charged with “creating a disturbance in a manner likely to cause a breach of peace.”

His case came before Judge Bahati Mwamuye on February 12, 2026, the same day the High Court rendered its decision invalidating the provision.

With the ruling, Kebaso’s case is expected to mark the last prosecution under the now-defunct misdemeanour.

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Public Outcry and Allegations of Over-Policing

The judgment comes amid heightened public scrutiny over alleged police misconduct in recent weeks.

Two viral videos obtained by hivileo.co.ke showed police officers assaulting peaceful citizens who were playing pool before arresting them.

Section 95(1)(b) facilitated over-policing by granting officers wide discretion to detain individuals, “for practically anything,” even in the absence of a clearly defined offence.

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Photo of IG Douglas Kanja. PHOTO/ National Police Service X Account