State v Makhanu & another (Criminal Case E2105 of 2023) [2026] KEMC 244 (KLR)
The bottom line
#Kenya's 'creating disturbance' charge is now unconstitutional, and this court acquitted two accused persons after the prosecution withdrew the case mid-trial.
What this practically means
#Executive summary
#Key legal issues
#Whether a charge founded on section 95(1)(b) of the Penal Code can proceed after that provision was declared unconstitutional
The prosecution conceded the charge was unsustainable and applied to withdraw; the court allowed the withdrawal and acquitted both accused
During defence hearing the court noticed the charge was brought under section 95(1)(b) of the Penal Code, which the High Court had recently declared unconstitutional in the Law Society of Kenya petition. Prosecuting counsel concurred and applied to withdraw the charge. The application was unopposed, and the court allowed withdrawal, resulting in an acquittal of each accused.
Which provision of section 87 of the Criminal Procedure Code governs withdrawal where the accused is already on his defence
Section 87(b), not section 87(a), is the correct provision once the accused has been placed on his defence
The prosecution sought withdrawal under section 87(a). The court perused both section 87(a) and 87(b) and held that withdrawal before the accused is placed on his defence falls under sub-section (a), whereas withdrawal at the stage where the accused has been placed on his defence falls under sub-section (b). Since both accused were on their defence, the court allowed withdrawal under sub-section (b).
Legal principles established
#- Section 95(1)(b) of the Penal Code has been declared unconstitutional by the High Court in Law Society of Kenya v Director of Public Prosecutions & 2 others; Kebaso (Interested Party) [2026] KEHC 1486 (KLR) (Mwamuye J)
- Section 87(a) of the Criminal Procedure Code applies to withdrawal by the prosecution before the accused is placed on his defence; section 87(b) applies where the accused has been placed on his defence
Court orders
#- 1.Allowed the State to withdraw the case against both accused persons under section 87(b) of the Criminal Procedure Code rather than section 87(a)
- 2.Each accused acquitted of the charge of creating disturbance in a manner likely to cause a breach of the peace contrary to section 95(1)(b) of the Penal Code
- Jurisdiction invoked
- Section 87(b) of the Criminal Procedure Code (withdrawal of case by the prosecution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "State v Makhanu & another (Criminal Case E2105 of 2023) [2026] KEMC 244 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/244/eng@2026-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.