Geoffrey Andare v Attorney General & 2 others [2016] eKLR said in Director of Public Prosecutions v. Morgan [1976] AC 182 at p.213 : 'The beginning of wisdom in all the "mens rea" cases is as was pointed out by Stephen J in Tolson (1889) 23 QBD 168 at p.185, that 'mens rea' means a number of quite different things in relation to different crimes'. Thus one must turn to the definition of particular crimes to ascertain the precise mens rea required for specific offences." The author then comments: "Criminal offences vary in that some may require intention as the mens rea, some require only recklessness or some other state of mind and some are even satisfied by negligence. The variety in fact goes considerably further than this in that not only do different offences make use of different types of mental element, but also they utilise those elements in different ways." 102. In this case, I believe the petitioner and the interested party are correct in relation to section 29(a) of the Act. The section criminalises the act of sending a “message or other matter that is grossly offensive or of an indecent, obscene or menacing character…” It does not require the mental element on the part of the sender of the message that would render his or her act criminal in nature. The offence appears to be premised on how others interpret the message. Section 29(b) does contain both elements of a criminal offence in that it criminalises the sending of a message that the sender knows “to be false for the purpose of causing annoyance, inconvenience or needless anxiety to another person”. However, as I have already found that the provisions of the section are over broad and vague, and that they limit the right to freedom of expression and are therefore unconstitutional, I believe that the arguments in respect of mens rea and actus reus are moot. 103. The petitioner and Article 19 have also challenged section 29 on the basis that it violates the petitioner’s rights under Article 50 (2) (n) of the Constitution which provides that: Every accused person has the right to a fair trial, which includes the right not to be convicted for an act or omission that at the time it was committed or omitted was noti. An offence in Kenya; or ii. A crime under international law. 104. It is not clear from the submissions before me in what way the provisions of section 29 offend against this Article. However, as I have already found the provision unconstitutional for other reasons, I believe this question is also moot. Disposition 105. The petitioner has sought three main orders from this Court: a) A declaration that Section 29 of the Kenya Information and Communication Act, Cap 411A is unconstitutional and invalid for unjustifiably violating Article 33 and 50 (2) (n) of the Constitution; b) A declaration that the continued enforcement of section 29 by the 2nd respondent against the petitioner, violates the Bill of Rights and therefore militates against the public interest, the interest of the administration of justice and constitute an abuse to the legal process; c) Flowing from prayer (b), an injunction barring the 2nd respondent from carrying on with the http://www.kenyalaw.org - Page 19/20