Justice? You get justice in the next world, in this one, you have the law, American novelist William Gaddis once quipped in his fictional book, A Frolic of His Own.
And Kenyans are taking Mr Gaddis’ advice seriously as they use the courts to test the limits of privacy laws enacted by parliamentarians, reaping millions along the way.
The courts, for their part, have kept busy defining the meaning and borders of privacy, which has opened the floodgates for compensation of people whose rights were violated.
Prosecution cases have flopped, some people have become overnight millionaires, while others have failed to build up their cases in divorce proceedings, all because courts found that some individuals placed winning ahead of respecting privacy laws and rights guaranteed by the Constitution.
Several judges have been faced with varying questions around privacy violations and there has been a loud response from the courts – privacy is still king.
RC and KR (real names withheld for legal reasons) were happily married until the latter started suspecting his wife of infidelity. With the marriage hanging on a thread, KR expelled his wife from their bedroom, and she moved to their son’s room.
KR hired a private investigator to tail RC and collect evidence that she was violating vows that the couple undertook to uphold until death.
He also, secretly, installed cameras in the room that RC was now occupying before hiding listening devices in her car and a section of the family home’s garden, where she would make and take phone calls away from KR.
Somehow, KR was also to obtain private messages and call logs from his estranged wife’s mobile phone, which corroborated other indicators that RC not only had a lover, but had even procured an abortion to keep the forbidden love a secret.
In 2019, KR filed two cases against his wife – one seeking divorce and another full custody of their two children. In the two cases, he filed nearly 100 pieces of evidence in the form of documents, photographs, videos, audio recordings and screenshots of her private communications with a lover.
The divorce case was filed at the Chief Magistrate’s Court in Milimani, while the custody battle is before the Children’s Court in the same Nairobi station.
On December 21, 2020, RC filed a case at the Constitutional and Human Rights Division of the High Court seeking a declaration that her husband violated privacy laws in collecting 86 pieces of evidence that he annexed to the divorce and custody suits. KR admitted to hiring a private investigator, but insisted that the sleuth gathered incriminating evidence against his wife legally. He also argued that RC had willingly surrendered to him her phone and social media passwords on account of their marriage.
KR added that while rummaging through a drawer in their son’s bedroom, now occupied by RC, he found a medical report proving that his wife procured an abortion to hide a pregnancy that was a result of an extramarital affair.
RC held that her estranged husband is an ICT expert that kept hacking into her phone despite her regularly changing passwords, and added that she did not consent to installation of any recording devices in their son’s bedroom or her car.
In April, Justice Anthony Charo Mrima found that KR had violated privacy laws in obtaining 32 pieces of evidence against his wife and barred him from using the exhibits in the divorce and custody battles.
“If such conduct by private citizens is not checked and sanctioned accordingly, then the end result will be fanning chaos in the society. It will be open to everyone to run around and gather evidence against the other in any manner. Such tendencies must be regulated.”
“There must be order in doing things. Illegal ways of gathering information must be discouraged since the Constitution and the law provide for ways within which any information may be obtained,” Justice Mrima said while allowing some of the exhibits like police occurrence book reports and recordings that were made in common areas like the matrimonial home gate and living room.
The judge has also allowed use of medical reports that KR found in his wife’s personal effects, which indicate that she procured an abortion. Justice Mrima held that the medical reports are fair play because they were obtained from the matrimonial home, which is part-owned by KR.
Had the reports been obtained from hospital or outside the family home, they would have been struck out on grounds of being obtained through violation of privacy, the judge held.
KR will have to pay for the costs that his estranged wife incurred in pursuing the petition.
Bank on the spot
Elsewhere, last Friday, Irene was awarded Sh200,000 for violation of privacy as the court found that NCBA Bank had shared her personal borrowing history with an employer.
Irene works for a leading multinational in telecommunications. The firm had allowed Irene to acquire a work-related credit card from NIC Bank (now NCBA), which she did.
But she also opened a separate credit card account, which was personal. By July, 2006 Irene had accumulated debts of Sh206,000 on her personal credit card, while the work-related one had no spend at all.
The telecommunications firm in 2016 asked NIC to provide details of Irene’s spending on the work-related credit card.
NIC provided information on both the personal and work-related credit cards.
Feeling violated, Irene hired Cliff Oduk Advocates to pursue a violation of rights case against the lender. NIC argued that at best, Irene should have filed a defamation suit against the bank.
Irene sued in November, 2017 which was more than one year after the privacy breach. This would have rendered any defamation claim time-barred under Kenyan law, which provides a 12-month window for such claims.
On Friday, Justice Weldon Korir agreed with Cliff Oduk Advocates that aspects of the suit on sharing private information with third parties were a violation of the Bill of Rights. The judge awarded Irene Sh200,000.
Machakos-based boda rider Mutuku Ndambuki Matingi in February became an overnight millionaire following a data privacy breach by another lender, Rafiki Microfinance Bank. Mr Matingi had in 2004 taken a loan from Rafiki Microfinance to buy a motorcycle, which he used in his business of ferrying passengers within Machakos town. He cleared the loan, but court papers do not indicate when. In May, 2015 Mr Matingi was invited for a meeting at Rafiki Microfinance’s offices, where his photograph was taken.
Mr Matingi insists he was told that the image was for the lender’s records of good clients, but Rafiki Microfinance argues that it was agreed that the photograph would be used for promotional pamphlets.
What was not contested by either party is that Mr Matingi’s photograph was used prominently in the lender’s Get a Boda promotion that ran between 2017 and 2020.
In 2019, Mr Matingi saw pamphlets with his photograph being circulated in Machakos town, and he became the object of ridicule among friends, who wondered why he was still in the boda business yet he had secured a modelling job with Rafiki Microfinance.
He wrote a letter to Rafiki Microfinance over the image use, and the lender apologised, while acknowledging that no written consent had been given. But the pamphlets continued to gain popularity in Machakos as Mr Matingi endured more mockery from friends. Disgruntled by the continued circulation, Mr Matingi sued for privacy violation.
On February 22, 2020 Justice Odunga awarded Mr Matingi Sh2 million for the image use as Rafiki Microfinance was unable to prove that its former client had consented to the image use.
Mr Matingi is not the only beneficiary of court awards arising from image use on pamphlets, as the Norwegian Refugee Council was two years ago ordered to pay its contractor and two of her relatives Sh210,000.
The woman identified in court papers only as FAF was contracted by the Norwegian Refugee Council to supply firewood and charcoal to the Dadaab Refugee Camp.
FAF sued the Norwegian outfit after appearing in a pamphlet that was aimed at depicting work being done with Somali refugees in Dadaab. The captioned photo suggested that FAF, her son and niece were Somali refugees.
In its defence, the Norwegian Refugee Council argued that the petitioner appeared to be comfortable with the photos being taken and even posed for good shots. The photographer explained to FAF that the images could be used in publications.
FAF nodded but did not say anything, leaving the Norwegian Refugee Council perplexed when it received a complaint from the woman.
Justice Wilfrida Okwany in 2019 ruled that the organisation fell short in getting consent from FAF before using the images.
“My finding, however, is that the mere fact that the petitioner may have appeared to be comfortable with the taking of her photograph does not connote that she consented to the said photograph being used in a widely circulated pamphlet. Furthermore, the respondent did not demonstrate that its photographer was a body language expert so as to be in a position to determine which body language means consent,” Justice Okwany said before awarding FAF and her kin Sh70,000 each.
Elsewhere, a former Miss World Kenya pageant was awarded Sh1 million following a leak of graphic images that would cost her the title. The model had been declared Miss World Kenya before an ex-boyfriend leaked nude photos taken while the two were still dating. She sued her ex-boyfriend, the pageant organiser Ashley’s Kenya, its CEO Terry Muigai and the contest’s runners up, who was to take up the Miss World Kenya title.
Justice Edward Muriithi found that only the ex-boyfriend was culpable of rights violations, and ordered that he pays her Sh1 million.