Miller v Sonko & another (Petition E513 of 2021)  KEHC 16533 (KLR) (Constitutional and Human Rights) (20 December 2022) (Judgment)
Neutral citation:  KEHC 16533 (KLR)
Republic of Kenya
Petition E513 of 2021
HI Ong'udi, J
December 20, 2022
In the matter of the interpretation and enforcement of the constitutional rights under article 22, 23, 28, 31, 35 and 165 of the constitution of Kenya and in the matter of contravention of articles 28, 31(c) & (d) & 35(2) of the constitution of Kenya, 2010
Cecil Guyana Miller
Mike Mbuvi Sonko
Amana Saidi Jirani
1.The petitioner in the petition dated 1st December 2021 has raised issues in respect of unlawfully recorded telephone conversations between him and the 1st and 2nd respondents. That the same were further posted on the 1st respondent’s facebook page, twitter account and other social media platforms. He therefore filed this petition seeking the following orders:
The Petitioner’s case
2.The petitioner’s claim as set out in the petition and supporting affidavit is that on unknown dates separate private conversations between the petitioner and the 1st & 2nd respondents were recorded. The recordings (conversation one and two respectively) were done without his consent.
3.In his supporting affidavit the petitioner refers to two compact Discs (CGM 1 & 2) containing the recorded conversations. He claims to have exhibited them by availing them to the court. I have not seen any such exhibits in the Court record.
4.It is the petitioner’s assertion that what the respondents did is a violation of his constitutional rights under Articles 31(d), 28 & 35(2) of the constitution. Basically he is complaining of breach of his constitutional right to privacy since he did not give his consent to the recording and posting of the recording of the same on social media platforms.
The Respondents’ case
5.The respondents were duly served via email and watsapp, but none of them filed a response to the petition nor application. The petition therefore proceeded unopposed.
6.The petitioner advocates P. W. Wena & company advocates filed undated submissions. It is counsel’s submission that the petitioner’s right to privacy and human dignity as protected under Articles 28, & 31(a) & (c) was violated. He relied on Jessicar Clarise Wanjiru vs. Davinsi Aesthetics & Reconstruction Centre & 2 others  eKLR where privacy is defined as:
7.Counsel also referred to Article 8(2) of the European Convention on Human Rights which defines this right as:
8.It’s his submission that the motive behind the recording of the petitioner’s private conversation with the respondents and the 1st respondent’s subsequent posting, publication and dissemination of the petitioner’s private conversation was to malign his reputation before his clients, colleagues and friends. This was therefore an infringement of his inherent right to have his dignity respected and protected.
9.Referring to section 2 of the Data Protection Act which defines “Consent” he argued that the petitioner’s consent, was never sought before all these things were done. He referred to Samson Mumo Mutinda vs. Inspector General National Police Service & 4 others  eKLR where it was held:
10.Finally he referred to Article 35(2) of the Constitution which provides:He further referred to sections 26 (e) & 40(1) (a)(b) of the Data Protection Act under which a data subject has a right to deletion of false or misleading data about them. He thus supported the prayer for deletion of all recorded private conversations between the petitioner and the respondents without his consent, plus all other prayers.
11.I have carefully considered the pleadings, the evidence and the submission filed. The main issue for determination is whether the petitioner has established that his right to privacy was violated.
12.The right to privacy is provided for in Article 31 of the Constitution which states as follows:
13.The law is clear on what entails a right to privacy. This has been elucidated clearly in a number of decided cases including Jessicar Clarise Wanjiru (supra).
14.The petitioner has raised a complaint in respect of some privately recorded conversations. In his supporting affidavit he has produced two certificates under section 106B (4) of the Evidence Act. These certificates are marked as CGM 1 & 2 respectively with no CD’s or flash disks annexed. The CDs or Flash disks are supposed to contain details of the alleged recorded conversations and the postings on the 1st respondent’s Facebook, twitter account and social media.
15.Without these gadgets the Court is not in a position to confirm the petitioner’s claims.
16.Sections 107, 108 & 109 of the Evidence Act (Chapter 80 of Laws of Kenya) provides as follows:-
17.Under the law, he who alleges a fact must prove it. It was the duty of the petitioner to prove the allegations against the respondents by placing material before this court in support of his claims, of recordings and publication. This is a requirement despite the fact that the respondents did not file a response to the petition. The court can only issue the orders sought upon being satisfied that indeed the alleged recordings and postings exist. In this case the petitioner has not proved any of the above and the petition must fail.
18.The upshot is that the petition lacks merit and is dismissed. There shall be no order as to costs since the respondents never filed any response to the petition and application.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 20TH DAY OF DECEMBER, 2022 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT