Goons behind All Saints Cathedral attack to be arrested, Murkomen assures

The recent violent disruption of a budget forum at All Saints Cathedral in Nairobi, condemned by Cabinet Secretary Kipchumba Murkomen, highlights critical issues surrounding public order, freedom of assembly, and criminal accountability in Kenya. While the incident has led to arrests and assurances of further action, it occurs against a backdrop of evolving jurisprudence on public order offences. Notably, the High Court recently declared Section 95(1)(b) of the Penal Code, which criminalised "creating a disturbance likely to cause a breach of peace," unconstitutional. This article examines the legal framework applicable to such disruptions, including constitutional rights, the Public Order Act, and remaining Penal Code provisions, offering insights for legal practitioners on potential charges and the broader implications for civic space and democratic participation.

The serene precincts of All Saints Cathedral in Nairobi recently became the scene of a violent disruption, as a budget forum organised by civil society groups was attacked by individuals described as 'goons'. This incident, which involved intimidation, violence, and theft of valuables, has drawn widespread condemnation from religious leaders, legal professionals, and human rights organisations across Kenya. Cabinet Secretary for Interior and National Administration, Kipchumba Murkomen, swiftly condemned the act, terming it "extremely unfortunate and unacceptable" and assuring the public that suspects have been arrested, with further security action underway.

This event is not merely a matter of public disorder; it represents a significant challenge to Kenya's constitutional guarantees of freedom of assembly, expression, and public participation. For legal practitioners, the incident necessitates a close examination of the applicable legal framework governing public gatherings, criminal liability for disruptive conduct, and the state's obligation to protect civic space. This article will delve into the relevant constitutional and statutory provisions, analyse potential charges, and consider the broader implications for the rule of law in Kenya, particularly in light of recent judicial pronouncements on public order offences.

Kenya's legal framework for public order and assembly is primarily anchored in the Constitution of Kenya, 2010, and supplemented by statutes such as the Public Order Act (Cap 56) and the Penal Code (Cap 63). Article 37 of the Constitution guarantees every person the right, peaceably and unarmed, to assemble, demonstrate, picket, and present petitions to public authorities. This fundamental right, however, is not absolute and may be limited by law if the limitation is reasonable and justifiable in an open and democratic society, particularly in the interests of national security, public safety, public order, public health or morals, or the protection of the rights and freedoms of others.

The Public Order Act (Cap 56) provides the regulatory framework for public meetings and processions, requiring organisers to notify the police between three and fourteen days prior to a proposed event. An assembly held in contravention of these provisions is deemed an unlawful assembly. The Act also prohibits the possession of offensive weapons at public gatherings. The Penal Code (Cap 63) outlines various offences against public order, including unlawful assembly (Section 78), riot (Section 79), and malicious injuries to property (Section 339).

A crucial recent development impacting public order jurisprudence is the High Court's landmark decision on February 12, 2026, which declared Section 95(1)(b) of the Penal Code unconstitutional. This section 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 the Constitution's guarantees of freedom of expression and peaceful assembly, thus rendering it null and void. This ruling significantly narrows the scope for arbitrary arrests under a provision that had often been used to suppress dissent, particularly against activists and protesters.

The disruption at All Saints Cathedral, involving violent entry, intimidation, and theft, likely implicates several provisions of the Penal Code, notwithstanding the recent invalidation of Section 95(1)(b). The perpetrators could face charges of unlawful assembly under Section 78 of the Penal Code, which defines an unlawful assembly as three or more persons conducting themselves in a manner that causes reasonable fear of a breach of the peace. Participation in such an assembly is a misdemeanour punishable by imprisonment for one year. If the disruption escalated to actual violence, charges of riot (Section 79) could also apply.

Furthermore, reports of stolen valuables and damage to property during the incident point to potential charges of theft and malicious injuries to property. Section 339 of the Penal Code stipulates that any person who wilfully and unlawfully destroys or damages property is guilty of an offence, liable to imprisonment for five years, or life if the destruction endangers life. The use of threatening or abusive behaviour could also fall under Section 94 of the Penal Code, which criminalises offensive conduct conducive to breaches of the peace in a public place or gathering. While the "creating a disturbance" charge is no longer available, these other public order and criminal offences remain potent tools for prosecution.

The incident also raises concerns about a worrying trend of using "goons" to disrupt lawful civic engagements, which the Law Society of Kenya (LSK) and other human rights groups have condemned as a threat to democracy and the rule of law. This phenomenon, coupled with allegations that one arrested suspect claimed to be acting on instructions from a top official, underscores the need for thorough investigations to identify not only the direct perpetrators but also any orchestrators or sponsors. Legal experts have expressed concern about the "weaponization of law" or "lawfare," where authorities allegedly resort to more punitive charges like terrorism, robbery with violence, or arson against protesters to impose high bail conditions and stifle dissent, especially after less severe public order charges proved difficult to sustain.

The High Court's decision to strike down Section 95(1)(b) is a significant victory for freedom of expression and assembly, compelling law enforcement to rely on more precisely defined offences. However, the continued use of organised groups to disrupt public participation forums, which are constitutionally mandated, signals an ongoing tension between the exercise of fundamental rights and the maintenance of public order. This tension necessitates a balanced approach from the judiciary and law enforcement, ensuring that legitimate public discourse is protected while genuine criminal acts are prosecuted effectively and fairly.

The violent disruption at All Saints Cathedral serves as a stark reminder of the fragility of civic space and the ongoing challenges to democratic participation in Kenya. Cabinet Secretary Murkomen's assurance of arrests and accountability is a crucial first step, but the legal community will be keenly watching to ensure that investigations are thorough, impartial, and extend to all those responsible, including any alleged sponsors.

For legal practitioners, this incident underscores the importance of understanding the nuanced landscape of public order law in Kenya. While the High Court's invalidation of Section 95(1)(b) of the Penal Code is a positive development for civil liberties, other provisions within the Penal Code and the Public Order Act remain applicable to acts of violence, intimidation, and property damage during public gatherings. Practitioners must be prepared to advise clients on their constitutional rights, the limits of lawful assembly, and the potential criminal liabilities arising from disruptive conduct. Upholding the rule of law in such instances is paramount to safeguarding Kenya's democratic gains and ensuring that public participation, a cornerstone of good governance, is not stifled by fear or intimidation.