Mwangi & another v Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) (19 July 2022) (Ruling)
Neutral citation:
[2022] KEHC 10975 (KLR)
Republic of Kenya
Petition E003 of 2021
GWN Macharia, J
July 19, 2022
IN THE MATTER OF ARTICLES 2(1) & (2), 10(2) (b), 19, 20, 22, 23(3), 28, 29, 31,165, 258 & 259 (1) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013
AND
IN THE MATTER OF SECTION 25, 26, 32 & 37 OF THE DATA PROTECTION ACT NO.24 OF 2019
Between
John Mwangi
1st Petitioner
Vincent Githanga
2nd Petitioner
and
Naivasha County Hotel t/a Sawela Lodges
Respondent
Ruling
The Petition
1.The Petitioners through a Petition and Supporting Affidavit dated the 5th day of July, 2021 raise allegations of infringement of their privacy rights as provided under article 31 of the Constitution.
2.Furthermore, the petitioners allege that the respondent took photographs of them during a team building activity at the respondent’s premises and proceeded to make posts on various social media platforms using the said pictures with the intention of marketing the Respondent’s products. The Petitioners aver that the foregoing actions of the Respondent violated their right to privacy as they did not consent to having their photos taken and the use of the same. The Petitioners additionally claim that their rights under article 2(1) & (2), 10(2) (b), 19, 20, 22, 23(3), 28, 29, 31,165, 258 & 259 (1) of the Constitution were violated by the Respondent.
The Preliminary Objection
3.The Respondent opposed the Petition vide a Notice of Preliminary Objection filed on the 12th day of August, 2021 on grounds, inter alia, that:i.The Honourable Court lacks jurisdiction to hear and determine issues raised in the Petition as the same does not raise justifiable constitutional matters.ii.The matters raised by the Petitioners fall under the jurisdiction of the Data Protection Commissioner established under the Data Protection Act, 2019 and this Honourable Court ought to discourage invocation of the constitutional process where there exists a parallel or alternative statutory remedy.iii.The allegations of taking and using photographs without the consent of the Petitioners are under the province of investigation by the office of the data commissioner under the Data Protection Act, 2019.iv.The Data Protection Act provides for an avenue for the Petitioners to seek redress.v.Even if the allegations raised in the Petition merit litigation, the claim is founded on tort and should not be entertained as a constitutional petition.vi.The Petition does not meet the required standards for Petitions alleging the violation of the human rights bill.
4.The Respondent thus urged the Honourable Court to dismiss the Petition.
Respondent’s Submissions
5.The Respondent relied on the locas classicus case of Mukisa Biscuit Manufacturers Ltd -vs- Westend Distributors Ltd, (1969) E.A. 696 page 700 which guides a Court with what constitutes a preliminary objection. It was observed as follows: -...A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues, and this improper practice should stop.”
6.It was the Respondent’s submission that the Honourable Court lacked the jurisdiction to entertain the Petition as the available alternative dispute resolution mechanisms were yet to be exhausted by the Petitioners prior to filing the petition. The argument is on the basis that where there is a clear procedure for redress of any particular grievance by the Constitution or an Act of Parliament, that procedure should be strictly followed. Reference was made to the provisions of sections 56, 57, 58, 62, 63, 64, 65 and 66 of the Data Protection Act, 2019 with particular attention to section 65 which provides:
7.The Respondent urged the Court to consider the position in Governor of Kericho County v Kenya Tea Development Agency & 30 others Ex-Parte Ktda Management Services Limited [2016] eKLR where it was state:
8.The court was also invited to consider the position in Rich Productions Ltd v Kenya Pipeline Company & another Petition No. 173 of 2014, where the High Court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:
9.It was further submitted by the Respondent that the issues raised in the Petition fell under civil law of tort and ought not to be tailored as constitutional human rights. Reliance was placed on the case of C N M v W M G [2018] eKLR where it was held:
10.Additionally, the Respondent in urging the Court to allow the notice of preliminary objection cited the case of Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR where it was held:
11.The Respondent submitted that the Petition ought to collapse under the doctrine of constitutional avoidance.
The Petitioners’ Response.
12.The Petitioners in opposition to the Respondent’s preliminary objection filed their written submissions on the 18th day of February, 2022.
13.The Petitioners submitted that the Court had the jurisdiction to entertain the instant Petition as was the position in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR where it was held:
14.It was the Petitioners’ strong position that by virtue of articles 23(1) and 165(3) (b) of the Constitution, the Court had jurisdiction to determine questions of violation, denial, threat to or infringement of a right or fundamental freedoms.
15.Further, the Magistrates’ Court Act, 2015 at section 8(2) caps the jurisdiction of subordinate courts to hear only applications relating to the right to freedom from torture, inhuman and degrading treatment and freedom from slavery and servitude as provided for under article 25(a) and (b) of the Constitution.
16.In buttressing the foregoing position, the Petitioners quoted the case of Anthony Miano & others v Attorney General & others [2021] eKLR where it was stated:
17.The Petitioners argue that the provisions ofsection 65 of the Data Protection Act only provide for an effective remedy for compensation but does not confer upon the data commissioner the jurisdiction to investigate issues relating to violation of constitutional rights.
18.The Petitioners also oppose the Preliminary Objection on the basis that it offends the laid down requirements in the locus classicus case of Mukisa Biscuits (Supra). The Petitioners thus urged the Court to dismiss the preliminary objection as it was not purely based on law but facts which could be argued.
Analysis and Determination
19.After a careful consideration of the respective submissions and the relevant law, I have demarcated the following issues for determination:i.Whether the Preliminary Objection is sustainable in law.ii.Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.iii.Whether there are any constitutional issues raised in the Petition.
Whether the Preliminary Objection is sustainable in law.
20.The jurisprudence on preliminary objections is exhaustive. In Civil Suit No. 85 of 1992, Oraro vs. Mbaja [2005] 1 KLR 141, Ojwang J (as he then was), cited with approval the position in Mukisa Biscuit -vs- West End Distributors (supra) and stated as follows on the operation of preliminary objection: -
21.The Courts have also addressed the value of pleadings when it comes to ascertaining the sustainability of a preliminary objection. In Omondi -vs- National Bank of Kenya Ltd & Others [2001] KLR 579; [2001] 1 EA 177, it was observed that: -
22.The objection raises issues of jurisdiction of this Honourable Court, the doctrines of exhaustion as well as the Petitioners’ claim being a civil claim under the law of tort which are not constitutional in nature. I find that the foregoing issues have the ability to bring to an end the Petition if allowed; thus the preliminary objection is sustainable in law.
Whether the Court is barred by the doctrine of exhaustion from entertaining the dispute.
23.It is the Respondent’s position that the Petitioners before approaching court have failed to exhaust the available avenues for addressing their grievances with references being made to the provisions of the Data Protection Act, 2019.
24.I wish to make reference to 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) (2020) eKLR where a 5-Judge bench stated as follows:
25.In the foregoing case, the Court proceeded to address exceptions to the exhaustion doctrine which has been argued by the Petitioner’s that the issue of infringement of their rights provided for under the Constitution will not be addressed under the provisions of the Data Protection Act, 2019 as to how to seek redress.
26.In the 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) (supra) went on to say:
59.However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus:
60.As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.
61.The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR.
62.In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.
27.The Petition is anchored on the use of personal data without the consent of the Petitioners. The issues raised in the Petition are extensively covered in the Data Protection Act, 2019. In particular, section 65 of the said Act as relied upon by the Respondent provides as follows:“65.(1)A person who suffers damage by reason of a contravention of a requirement of this Act is entitled to compensation for that damage from the data controller or the data processor.(2)Subject to subsection (1)—(a)a data controller involved in processing of personal data is liable for any damage caused by the processing; and(b)a data processor involved in processing of personal data is liable for damage caused by the processing only if the processor —(i)has not complied with an obligation under the Act specifically directed at data processors; or(ii)has acted outside, or contrary to, the data controller's lawful instructions.(3)A data controller or data processor is not liable in the manner specified in subsection (2) if the data controller or data processor proves that they are not in any way responsible for the event giving rise to the damage.(4)In this section, "damage" includes financial loss and damage not involving financial loss, including distress.”
28.Further, a party aggrieved by the decision of the Data Commissioner has the right of appeal to the High Court as provided for in Section 64 as follows:
29.I also borrow from the position in Governor of Kericho County v Kenya Tea Development Agency & 30 others Ex-Parte KTDA Management Services Limited [2016] eKLR cited by the Respondent where the court held that:
30.In view of the foregoing, I find that the Petitioners have not sufficiently demonstrated why the Petition ought to be exempted from the exhaustion rule. I am inclined to find that the Petition is barred by the doctrine of exhaustion.
Whether there are any constitutional issues raised.
31.The Honourable Court is guided by the position of the Supreme Court of Kenya on what amounts to a constitutional issue. In the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR it was held:
32.The issues raised in the instant Petition are in the nature of grievances between private parties. The Petition is anchored on the grounds that the Respondent failed to seek the Petitioners’ consent. The Court is of the considered view that the same does not amount to a constitutional issue but a dispute between private individuals. I marry this view with the position in Uhuru Muigai Kenyatta (Supra) where it was held that:
33.In view of the foregoing, I arrive at the conclusion that the Petition fails to raise constitutional issues. It is not one that should be canvassed by this Court is a constitutional issue.
Disposition
34.Flowing from the foregoing findings and conclusions, the following orders of this Court do hereby issue: -(a)The Preliminary Objection dated 12th August, 2021 is hereby upheld.(b)The Petition is hereby struck out with costs to the Respondent.
35.It is so ordered.
DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022.G.W.NGENYE-MACHARIAJUDGEIn the presence of:…………………………………… for the Petitioners.…………………………………….. for the Respondent.