In a landmark ruling that could redefine Kenya’s digital rights landscape, the High Court has fully acquitted Moi University student David Oaga Mokaya, who had been charged under Section 23 of the Computer Misuse and Cybercrimes Act for allegedly publishing false information about President William Ruto.
The ruling not only clears Mokaya of all charges but also sets a powerful legal precedent on freedom of expression, digital privacy, and the limits of police power in Kenya’s online space.
Mokaya had faced prosecution over a social media post deemed critical of President Ruto. However, in a decisive judgment, Trial Magistrate Carolyne Mugo ruled that the prosecution failed to provide evidence directly linking him to the alleged offence.
The court found glaring procedural flaws in the investigation, declaring that the police acted unlawfully and effectively framed the student. Mokaya was acquitted under Section 215 of the Criminal Procedure Code — a provision that mandates release where evidence is insufficient.
Legal experts say the ruling significantly narrows the application of the Computer Misuse and Cybercrimes Act, particularly Section 23, which has faced criticism from civil society groups for being weaponized against dissenting voices online.
Barely hours after the acquittal, Mokaya’s lawyer, Danstan Omari, announced plans to sue telecommunications giant Safaricom for Ksh200 million.
Omari alleges that Safaricom unlawfully shared Mokaya’s location data with officers from the Directorate of Criminal Investigations without a court order — an act he says violated the Data Protection Act and the Constitution.
“This is a violation of the fundamental human rights of our client,” Omari said in a press statement. “We shall be moving to the High Court because his constitutional rights were violated. This trend must stop.”
The lawyer has issued a demand letter giving Safaricom until Monday to settle the Ksh200 million claim, failing which the matter will proceed to court.
At the heart of the looming lawsuit is a constitutional question: Can investigative agencies obtain citizens’ mobile location data without judicial authorization?
Omari argues that officers from the Directorate of Criminal Investigations cannot lawfully request mobile service providers to disclose subscriber location data without a court warrant. He further questioned the legality of police confiscating suspects’ mobile phones without prior judicial approval.
“No law allows police to take possession of phones until a court order is issued,” he stated.
If the High Court upholds these arguments, the case could significantly reshape digital surveillance practices in Kenya.
The acquittal is already being hailed by digital rights activists as a turning point in the protection of online expression. Critics have long argued that provisions of the Computer Misuse and Cybercrimes Act have been used to intimidate bloggers, activists, and government critics.
This ruling sends a strong signal: freedom of expression under Article 33 of the Constitution extends to digital platforms — and law enforcement must operate strictly within constitutional limits.
As #ProtectFreeSpeechKE trends across social media, Mokaya’s case is evolving from a personal legal battle into a broader national conversation about civil liberties in the digital age.
All eyes now turn to the expected High Court petition against Safaricom. Should the Ksh200 million claim proceed, it could open the floodgates for similar lawsuits challenging how telecom providers cooperate with investigative agencies.
For now, David Mokaya walks free — vindicated by the courts — in a ruling that may forever alter the balance between state power and online speech in Kenya.
