Section 194 of Kenya's Penal Code, which made the publication of defamatory matter a criminal offence punishable by two years imprisonment, was drafted in 1930 by the British colonial administration and had survived independence, multiparty democratisation, and two constitutional rewrites. It had also, in the view of three Court of Appeal judges, never been compatible with freedom of expression protections that Kenya's 2010 constitution made justiciable for the first time.

The case was brought by a coalition of media organisations led by the Kenya Editors Guild, following the arrest of investigative journalist David Omwoyo in 2023 after he published reporting on procurement irregularities in the Ministry of Health. Omwoyo spent 11 days in pretrial detention before charges were withdrawn — a pattern that petitioners documented had repeated at least 140 times against journalists and online commentators since 2010.

The court's judgment holds that criminal defamation fails the proportionality test required of any limitation on free expression under Article 33 of the constitution: civil defamation remedies are adequate to protect reputation, and the chilling effect of potential imprisonment on public interest journalism constitutes a disproportionate restriction on speech that cannot be justified in a democratic society.

The ruling does not affect civil defamation law, which remains available to individuals and institutions seeking reputational remedy through damages. Parliament has been given 12 months to repeal the invalidated provisions and review related provisions of the Computer Misuse and Cybercrimes Act that petitioners argue create equivalent criminal exposure for online publishers.

"Colonial law does not become constitutional law simply by surviving independence," said presiding judge Justice Lydia Achode. "We have corrected a 95-year error."