The decision follows a February 2026 High Court judgment that invalidated Section 95(1)(b) of the Penal Code, which criminalised “creating a disturbance in a manner likely to cause a breach of peace.”
Justice Bahati Mwamuye ruled that the provision was vague, overly broad, and inconsistent with constitutional protections, effectively rendering all charges founded on it legally unenforceable.
“The provision was unconstitutional and could not be used to prosecute citizens,” the court ruled.
Recent background
Eric Omondi had previously been charged under the provision during protests linked to the high cost of living and demonstrations involving traders in Nairobi.
He was arrested and presented in court for allegedly causing a disturbance during public mobilisation activities.
The High Court ruling followed a petition by the Law Society of Kenya, which challenged the legality of the offense. The petition argued that the provision:
- It was a colonial-era law that no longer aligned with the Constitution.
- Allowed arbitrary arrests and prosecutions
- Failed to clearly define what constituted a disturbance
- Infringed on freedom of expression and assembly
Justice Mwamuye agreed with the petitioners and directed police and prosecution authorities to immediately stop enforcing the provision.
Impact on Omondi’s case
The ruling directly affects Eric Omondi’s charges, as they were based on the now-invalidated section of the Penal Code.
Legal analysts note that once a law is declared unconstitutional, any ongoing cases based on it automatically collapse. This means Omondi’s disturbance charges cannot proceed in court and are legally considered void.
Wider legal implications
The judgment has broader consequences for public order cases across Kenya. Courts and law enforcement agencies are now required to rely on constitutionally compliant provisions when handling protest-related offences.
Key implications include:
- Termination of ongoing cases filed under Section 95(1)(b)
- Review of past prosecutions based on the same offence
- Requirement for clearer and constitutionally sound public order laws
- Increased scrutiny of vague criminal provisions in the Penal Code
A significant legal development
The decision concludes a legal chapter in Eric Omondi’s court cases and reflects ongoing judicial consideration of laws within Kenya’s criminal justice system.
The High Court ruling sets a precedent on the interpretation of public disturbance offences. Enforcement agencies are expected to ensure future prosecutions comply with constitutional standards and clearly defined legal provisions.
