Mwanzia v Rhodes (Constitutional Petition E115 of 2022)  KEHC 2688 (KLR) (Constitutional and Human Rights) (31 March 2023) (Judgment)
Neutral citation:  KEHC 2688 (KLR)
Republic of Kenya
Constitutional Petition E115 of 2022
AC Mrima, J
March 31, 2023
Mercy Mwikali Mwanzia
Allan J. Rhodes
1.The Petition subject of this judgment is a challenge to alleged infringement of the Petitioner and her child’s privacy rights by the Respondent.
2.The Respondent did not, however, take part in the hearing of the Petition despite service.
3.In the main, the Petitioner prayed for the following reliefs: -
4.On directions of this Court, the Petitioner filed her written submissions on the Petition, hence, this judgment.
5.As a preliminary issue, it is the duty of a Court before which a matter is laid to ascertain whether it has the requisite jurisdiction. In this case, upon perusal of the Petition and the submissions, the provisions of the Data Protection Act, No. 24 of 2019 (hereinafter referred to as ‘the Data Act’) came to the fore.
6.The Preamble of the Data Act states that it is an Act of Parliament to give effect to Article 31(c) and (d) of the Constitution; to establish the Office of the Data Protection Commissioner; to make provision for the regulation of the processing of personal data; to provide for the rights of data subjects and obligations of data controllers and processors; and for connected purposes.
7.Article 31(c) and (d) of the Constitution provides as follows: -
8.The Data Act further provides for the rights of a data subject, the enforcement of rights of data subjects, investigation of complaints by data subjects, compensation for breach of the rights of data subjects, the registration of data controllers and data processors, the principles and obligations of personal data protection, processing of sensitive personal data, among many other aspects of personal data.
9.Section 3 of the Data Act provides for the objectives as follows: -The object and purpose of this Act is-
10.Section 5 of the Data Act establishes the Office of the Data Protection Commissioner which is a body corporate with perpetual succession and a common seal and has the power to conduct business in its corporate name. I will hereinafter refer to the said office as ‘the Data Commissioner’’ or ‘the Commissioner’.
11.One of the many functions of the Data Commissioner is provided for in Section 8(1)(f) as ‘to receive and investigate any complaint by any person on infringements of the rights under this Act’.
12.The Commissioner further has powers to conduct investigations on its own initiative, or on the basis of a complaint made by a data subject or a third party. That is provided for in Section 9(1)(a) of the Data Act.
13.In discharging its functions and exercising its powers, the Commissioner is authorized under Section 59 of the Data Act to seek the assistance of such person or authority as it deems fit and as is reasonably necessary to assist the Data Commissioner in the discharge of the functions.
14.Section 65 of the Data Act gives the Data Commissioner the power to determine the compensation payable to a data subjectwho suffers damage by reason of a contravention of any requirement of the Data Act and in instances where the Commissioner finds as much.
15.With a view to protect the integrity of the processes under the Data Act, the statute provides for enforcement notices under Section 58 in respect of those who failto comply with any provision of the Data Act.
16.Under Section 64 of the Data Act, any appeal from the decision of the Commissioner lies to the High Court.
17.A close scrutiny of the Data Act reveals a deliberate design to ensure that all claims arising from allegations of infringement of Article 31(c) and (d) of the Constitution are wholly dealt with by the Commissioner as the first port of call. Such position can only be overruled by a party demonstrating any of the exceptions to the doctrine of exhaustion in a matter.
18.Returning to the case at hand, the Petitioner’s complaint is the alleged publication of the Petitioner’s and her child’s images and/or photographs by the Respondent in his social media accounts without the Petitioner’s consent. The Petitioner alleged breach of her Article 31 rights under the Constitution. Shee then sought for inter alia some declarations as well as compensatory damages.
19.This Court ascribes to the position that in a case where Parliament donated powers to an entity like the Data Commissioner to determine if one’s privacy rights under Article 31(c) and (d) of the Commissioner are infringed, then it means as much; that the Commissioner has such power determine whether privacy rights as provided for in the Bill of Rights has been denied, violated, infringed or threatened. However, the Commissioner lacks the jurisdiction to interpret the Constitution.
20.The reason for the foregoing holding is simple. The members of the Office of the Data Commissioner, as an entity and individually so, are public officers and Article 10 calls upon them to infuse the national values and principles of governance while undertaking their duties. Article 3 obligates every person to respect, uphold and defend the Constitution. Therefore, the Commissioner must be in a position to uphold the Constitution, and in doing so, to be able to determine whether a given set of circumstances reveal denial, violation, infringement or threat to the privacy rights in the Bill of Rights.
21.The above duty is to be distinguished from the duty to interpret the Constitution. Determining whether a given set of circumstances reveal denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights is just that simple. Conversely, interpretation of the Constitution is a serious judicial function. While interpreting the Constitution, the High Court is called upon to apply its legal mind to determine the applicability and extent thereof of a constitutional provision to a set of facts. In arriving at such an interpretation, the High Court is supposed to consider all the applicable principles in constitutional interpretation. (See the Supreme Court in In the Matter of Interim Independent Electoral Commission  eKLR). The High Court may also look at comparative jurisprudence from other jurisdictions on the subject. Such a determination yields to a binding legal principle unless overturned by a Court with superior jurisdiction.
22.Unlike the High Court, Tribunals and other quasi-judicial bodies, including the Data Commissioner, do not make the law. They can, however, apply themselves to a given set of facts and determine denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights.
23.There is, therefore, a defined distinction between determining the denial, violation, infringement or threat to the privacy rights in the Bill of Rights and interpreting the Constitution. Whereas the former is not exclusively a judicial function, the latter is. The jurisdiction, therefore, to interpret the Constitution is the exclusive duty reserved to the High Court vide Article 165(3)(d) of the Constitution.
24.In the instant matter, the Data Commissioner has the jurisdiction to determine whether the Petitioner’s privacy rights in the Bill of Rights were denied, violated, infringed or threatened. The Commissioner has further powers to order appropriate compensation in the event of proof of the infringement.
25.The Data Act, therefore, wholly provides for the dispute at hand as well as the remedies in the event the dispute is successful.
26.In such a case, it was incumbent upon the Petitioner to demonstrate to the Court any of the exceptions to the doctrine of exhaustion. At this point in time, this Court will briefly look at the doctrine of exhaustion before ascertaining whether the Petitioner demonstrated any of the exceptions.
27.The doctrine of exhaustion was comprehensively dealt with by a 5-Judge Bench in Mombasa High Court Constitutional Petition No. 159 of 2018 consolidated with Constitutional Petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties)  eKLR. The Court stated as follows:
28.The Court also dealt with the exceptions to the doctrine of exhaustion. It expressed itself as follows: -
29.The above decision was appealed against by the Respondents. The Court of Appeal in upholding the decision and in dismissing the appeal in Mombasa Civil Appeal No. 166 of 2018 Kenya Ports Authority v William Odhiambo Ramogi & 8 others  eKLR held as follows: -
30.Further, in Civil Appeal 158 of 2017, Fleur Investments Limited v Commissioner of Domestic Taxes & another  eKLR, the Learned Judges of the Court of Appeal relied on an earlier decision in Speaker of National Assembly v Njenga Karume [1990-1994] EA 546 to assume jurisdiction by bypassing the mechanism under Income Tax Tribunal. They observed as follows: -
31.Courts have in many occasions reiterated the position that where there are alternative avenues legally provided for in dispute resolutions, there should be postponement of judicial consideration of such disputes until after the available avenues are fully adhered to or unless it is adequately demonstrated that the matter under consideration falls within the exception to the doctrine of exhaustion.
32.Returning to the matter at hand, it appears that the Petitioner did not demonstrate any of the exceptions discussed above. As a result, this Court’s jurisdiction has been improperly invoked. The Petitioner ought to lay her claim under the provisions of the Data Act.
33.As a result of the foregoing, the following orders do hereby issue:(a)This Court declines jurisdiction on the basis of the doctrine of exhaustion.(b)The Petition dated 22nd March, 2022 is hereby struck out.(c)No order as to costs with costs.Orders accordingly.
DELIVERED, DATED AND SIGNED AT KITALE THIS 31ST DAY OF MARCH, 2023.A. C. MRIMAJUDGEJudgment No. 1 virtually delivered in the presence of:Mr. Kizangi for Nganga, Learned Counsel for the Petitioner.Regina/Chemutai – Court AssistantsJudgment - Nairobi High Court Constitutional Petition No. E115 of 2022 Page 6 of 6