1.The Respondent herein filed the Notice of Preliminary Objection dated 24th March 2023 against the Petitioner’s petition dated based on the following grounds: -
2.On the right to privacy, the Petitioner submitted that in this case the Respondent had an image of the Petitioner’s private home taken and used for advertisement without his consent. That a person’s privacy includes private family and home life and home life and that means the Respondent’s use of the image of the Petitioner’s house has resulted in violation of the Petitioner’s and his family’s privacy rights as people flood at his gate claiming they are visiting the site.
3.It was stated that privacy can be more or less extensive involving a broader range of matters bearing on an individual’s personal life. It is not limited to a person’s likeness or signature. It also includes his identity which means even his personal space/ his home also defines his identity thus taking a photograph of someone’s house and using that image for financial gain without the consent of the owner is interference of the owner’s privacy which amounts to violation of his constitutional rights.
4.Reliance was placed on Article 31 of the Constitution, Kenya Human Rights Commission vs Communications Authority of Kenya & 4 Others  eKLR, JW1 & Another v Standard Group Limited & Another  eKLR, Jessicar Clarise Wanjiru vs. Davinci Aesthetics & Reconstruction Centre & 2 Others  eKLR
5.The Petitioner argued that the Respondent used one of the aspects of his identity which is taking and using the image of his private home and used it for commercial purposes by advertising his business using the said image without the Petitioner’s consent.
6.Further, it was averred that this court has the jurisdiction to hear and determine the petition against the Respondent for violating the Petitioner’s constitutional right of privacy as per Article 23 (1) of the Constitution.
7.Lastly, it was submitted that the petition is not fatally defective as claimed by the Respondent, it is not bad in law and so it should not be dismissed instead the preliminary objection raised by the Respondent should be the one dismissed.
8.The Respondent reiterated that this petition does not raise any constitutional issue and that the photograph purportedly used by the Respondent does not include the Petitioner’s image, personality or likeness. The advertisement using the said image could be argued as a breach of copyright and therefore no constitutional issue is raised in this petition.
9.It was contended that this court sitting as a constitutional court does not have the jurisdiction to entertain the petition where there exist parallel or alternative statutory remedies that the Petitioner could explore. That the entire petition is fatally defective, is bad in law and should be dismissed with costs to the Respondent. Reliance was placed on Tony Hillary Omondi v Silverstone Air  eKLR
10.The Respondent averred that the Petitioner does not disclose any infringement of a constitutional right as the photograph relied upon des not include his likeness, image or anything personal. Thus, the entire petition is fatally defective, frivolous and an abuse of this honourable court.
Analysis and Determination
11.I have considered the preliminary objection filed by the Respondent as well as the written submissions filed by both parties.
12.The nature of a preliminary objection was elaborated on the case of Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd 1969 E.A as follows: -
13.Additionally, in Nitin Properties Ltd v Singh Kalsi & Another  eKLR, the Court of Appeal stated as follows: -
14.First and foremost, the Respondent raised an objection as to the jurisdiction of this court to handle the petition. An objection to the jurisdiction of the court has been cited as one of the preliminary objections that consists a point of law. (See The Owners of Motor vessel Lillian ‘S’ vs Caltex Kenya Limited  KLR 1)
15.The jurisdiction of the High Court is derived from Article 165 (3) and (6) of the Constitution. Accordingly, the High Court has unlimited original jurisdiction in criminal and civil matters, including determination of a question of enforcement of the Bill of Rights and interpretation of the Constitution encompassing determination of any matter relating to the Constitutional relationship between the different levels of government.
16.Accordingly, in the instant case, the Petitioner alleges violation of his fundamental rights. The Petitioner’s suit primary seeks to enforce his fundamental right to privacy as framed in the constitution. The alleged violation of the same by the Respondent is a question which can only be determined by the High Court. It is therefore clear that this court has the requisite jurisdiction to handle the petition herein.
17.The validity of a preliminary objection is weighed against the requirement that it must raise pure points of law that may extinguish the dispute at one.
18.The Respondent asserted that the petition does not raise any constitutional issues. That the rights to dignity and privacy are facets personality and a person’s privacy includes their identity, image, likeness, signature etc. They argued that the photograph purportedly used by the Respondent does not include the Petitioner’s image, personality or likeness. That the advertisement using the said image could be argued as a breach of copyright and therefore no constitutional issue is used in this petition. A constitutional issue is one whose resolution requires the interpretation of the constitution rather than of a statute.
19.However, it is my opinion that the issue of the Respondent’s alleged violation of the Petitioner’s right to privacy and right to human dignity as protected under Article 31(a) & (c) & 28 of the Constitution raises a valid constitutional issue that this court should resolve particularly on the right not to have one’s private affairs unnecessarily revealed as alleged by the Petitioner. Moreover, I disagree with the Respondent’s averment that the entire petition is fatally defective and that it is bad in law as it seeks to enforce the Petitioners right to privacy as demonstrated.
20.For the foregoing reasons, I find that the Preliminary Objection lacks merit and thus make the orders;