Can police still charge you with 'creating a disturbance'?
Penal Code; High Court of Kenya · sources read 5 Oct 2026
On 12 February 2026 the High Court declared Penal Code section 95(1)(b), the offence of brawling or creating a disturbance likely to cause a breach of the peace (up to 6 months in jail), unconstitutional, null and void, and declared its enforcement against anyone unlawful. The DPP has filed an appeal, but on 25 September 2026 the High Court refused to stay the judgment, so it stands unless the Court of Appeal decides otherwise. The rest of section 95 and the separate offence in section 94 remain.
- Where
- The court handling the charge; the High Court for constitutional petitions
Steps
- If you are told you are being charged with 'creating a disturbance' under section 95(1)(b), you can point to the High Court judgment in Petition E573 of 2024, [2026] KEHC 1486 (KLR), which declared that offence void.
- If the prosecution says the judgment is suspended because of the appeal, note that the High Court refused a stay on 25 September 2026, in [2026] KEHC 14299 (KLR).
- Check the exact section on the charge sheet: a charge under section 94 or another part of section 95 is a different offence that the judgment did not touch.
Watch out
- The DPP filed a Notice of Appeal and was allowed to file the appeal late, so the Court of Appeal could still reverse the judgment.
- Using threatening, abusive or insulting words or behaviour in a public place to provoke a breach of the peace is still an offence under section 94: up to KSh 5,000 fine, 6 months in jail, or both.
- Threatening to break or injure a house to intimidate someone, or firing a gun to alarm people in a house, is still an offence under section 95(2), with up to 3 years in jail, or 4 years at night.
- Kenya Law's Penal Code text (2023 version) still prints section 95(1)(b), because it was consolidated before the judgment.
Who this covers
- The declaration covers anyone, not only the people in the case.
Official sources (3)
- Law Society of Kenya v Director of Public Prosecutions & 2 others; Kebaso (Interested Party) (Petition E573 of 2024) [2026] KEHC 1486 (KLR) (12 February 2026) (Judgment) new.kenyalaw.org · read 5 Oct 2026
- Law Society of Kenya v Prosecutions & 3 others (Constitutional Petition E573 of 2024) [2026] KEHC 14299 (KLR) (25 September 2026) (Ruling) new.kenyalaw.org · read 5 Oct 2026
- Penal Code (Cap. 63) new.kenyalaw.org · read 5 Oct 2026