Ngunjiri v Kiambi & another (Petition E225 of 2023) [2025] KEHC 3793 (KLR) (Constitutional and Human Rights) (27 March 2025) (Judgment)
Neutral citation:
[2025] KEHC 3793 (KLR)
Republic of Kenya
Petition E225 of 2023
LN Mugambi, J
March 27, 2025
Between
Samuel Maina Ngunjiri
Petitioner
and
Faith Kiambi
1st Respondent
Joseph Mutharia
2nd Respondent
Judgment
1.The petition dated 3rd July 2023 was amended on 13th February 2024. It is supported by the petitioner’s affidavit of even date.
2.The gravamen of this Petition is that the respondents installed a closed-circuit television (CCTV) camera directly pointing at the petitioner’s house without consulting or obtaining his consent and have thus violated his right to privacy under Article 31 of the Constitution.
3.Consequently, the petitioner seeks the following reliefs:i.A declaration that the actions of the 1st respondent to install the CCTV Cameras made to capture the details of the petitioner and his family without his consent violated the right to privacy as provided for by Article 31 of the Constitution.ii.An order of injunction against the 1st respondent her agents and or employees from installing any CCTV Cameras or any other surveillance gadget directed at the petitioner's house or its environs made to collect data and information taking place within the petitioners House, residence and its environs.iii.An Order be granted to have the data held and stored in the said CCTV Camera installed at Faith Apartments in Ngumba Estate on the corridor of House Number 8 and 7 be destroyed in the presence of both parties herein and also in the presence of OCS Kasarani Stadium Police Station.iv.A declaration that the decision to have the petitioner arbitrarily evicted via its letter dated 9th June 2023, contravenes his constitutional Rights under Article 39 of the Constitution.v.A mandatory injunction against the 2nd respondent, his agents, his employees, and or his principals to withdraw the letter dated 9th June 2023 and to desist from frustrating the petitioner and or his family for pursuing the matter herein or otherwise.vi.An order for compensation by the respondents for the violation of the petitioner's rights and fundamental freedoms.vii.An Order that any camera installed by the 2nd respondent, his agents, employees and or his principals be done by consent of the petitioner herein with the full disclosure of the purpose of the collected data with the appreciation that the petitioner can access the data collected.viii.Costs of the petition shall be borne by the respondents.
Petitioner’s case
4.The petitioner states that he and his family reside at Faith Apartment at Ngumba Estate on Thika Road. The 1st respondent is his next-door neighbour.
5.He depones that on 1st May 2023 the respondents without consulting him, installed the CCTV camera directly facing his house. That the said camera CCTV camera is angled in a way that it covers his main door entrance, the living room and the common area.
6.The petitioner alleges that the 1st respondent owned up that she installed the cameras to spy on his family and would not remove the CCTV camera. He alleges that this camera has been collecting information about his family’s movements.
7.The petitioner states that distressed by this action, his wife on 2nd May 2023 raised the issue with the 2nd respondent who is the landlord. He alleges that the landlord in response stated that he did not need their consent to install CCTV cameras. A follow up email sent on 4th May 2023 to the landlord was also futile.
8.Their concerns falling on deaf ears, the petitioner proceeded to report the matter to Kasarani Stadium Police station on 11th May 2023 under OB No: 11/3/5/2023. He avers that nothing much was done following his complaint.
9.He states that his suggestion on 12th May 2023 to have the CCTV camera tilted to a different angle to avoid recording his family’s activities was met with hostility and further non-responsiveness from the 1st respondent. The petitioner raised the issue with the 2nd respondent again on 16th May 2023.The landlord promised to intervene however it is alleged that no intervention was done. Further follow ups on 18th and 25th May 2023 did not bear any fruit.
10.Thereafter, the petitioner engaged the services of an Advocate who through a demand letter dated 31st May 2023, demanded that the CCTV camera be removed and the data collected erased. In response, the 1st respondent through her Advocate stated that the CCTV camera had been installed for their own security.
11.The petitioner depones that he engaged a technician to advice on the purpose of the CCTV camera. That the technician confirmed that the CCTV camera has an audio and video coverage of 30 meters and 45 degrees in a straight line. He noted that the distance of the doors of the petitioner and the 1st respondent is 6 meters apart.
12.As such, the camera is able to capture the common walkways and the petitioner’s living room and bedroom window. The camera in addition has the capacity to store over 512GB-2T which can store a record of up to 365 days.
13.The petitioner depones that soon after, the 2nd respondent through his Advocate in a letter dated 9th June 2023 directed the petitioner to vacate the apartment citing misbehavior that cannot be tolerated. He states that no other reasons were issued. Equally, he is aggrieved that up to the time the petition was filed, the 2nd respondent failed to consider their concerns over the CCTV camera.
14.The petitioner asserts that since the CCTV camera was installed his family which includes minors has been affected greatly more so taking into consideration the dangers that come with the liberty in the digital world.
15.He informs moreover that’s his children are not able to play freely on the common areas and that they have lacked peace of mind as they do not understand why they are being recorded. His wife has also had to adjust her work schedule out of fear of what would happen to their 6 month old baby who is usually left with the house manager.
16.The petitioner is also concerned about the data being recorded which he has no access to. He as well states that he has to leave work early since he is afraid that an attack may be made against his family thus the need to protect them. This issue has equally caused him and his family emotional, psychological and mental distress forcing him to take blood pressure medication.
17.On this premise, the petitioner asserts that his right to privacy as envisaged under Article 31 of the Constitution has been contravened by the respondents.
1st Respondent’s case
18.The 1st Respondent filed the response dated 9th July 2023 and a Notice of Preliminary Objection dated 10th July 2023 in which she alleges that the petition is misconceived and an abuse of the Court process.
19.The 1st respondent objected the petition on the basis of jurisdiction due to the fact that the Data Protection Act provides the process raising the complaint in the statute. That the complaint is first required to be lodged with the Data Commissioner under Section 56 and that the High Court only enjoys appellate jurisdiction under Section 64 of Data Protection Act. It is argued thus that the petition cannot be entertained until that process is exhausted.
20.The 1st respondent additionally avers that the right to privacy is not absolute and must be balanced against the right to security of person.
21.The 1st respondent affirms that the petitioner and his family are her next-door neighbors. She contends that the petitioner is a bad neighbor who is quarrelsome and keeps devising evil and criminal activities against her.
22.It is averred that the 1st respondent became fearful of her security when she discovered that strangers were peering through her window. The persons were also dropping objects of witchcraft at her door and spying on her. It is on this basis that she decided to install the CCTV camera so as to know what activities were being planned against her.
23.It is stressed that the 1st respondent has the right to protect her family’s safety. She contends that installation of the CCTV cameras for personal safety is exempted under the Data Protection Act under Section 51.
2nd Respondent’s Case
24.The 2nd respondent filed his answer to the petition dated 19th July 2023.
25.The 2nd respondent supported the 1st respondent’s objection that the petition is incompetent and bad in law in view of Section 56 and 64 of the Data Protection Act and the sixth Schedule of the Constitution.
26.The 2nd respondent further states that petition is an abuse of the court process as overlooks the mandate of the Data Commissioner and this Court’s appellate jurisdiction in such matters as provided in the Act.
27.The 2nd respondent avers that he did not participate in the installation of the CCTV camera. He notes that the petitioner did not prove that he did so.
28.Additionally, he avers that his efforts to mediate on the issue between the 1st respondent and the petitioner did not yield any fruit.
29.He depones that in his opinion the best option was to separate the two thus issued the directive to the petitioner to vacate the apartment.
Petitioner’s response to the 1st Respondent’s Preliminary Objection
30.The petitioner in response filed grounds of opposition dated 13th July 2023 on the grounds that:i.The Constitution which is the supreme law of the land vests the High Court with unlimited and original jurisdiction over all civil and criminal matters as per the provisions of Article 165.ii.Article 23 of the Constitution vests the High Court with the jurisdiction to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.iii.Section 56 of the Data Protection Act uses permissive as opposed to mandatory terms in dictating the choice of avenue of lodging complaints and as such a party is at liberty to institute a complaint at either the High Court or the office of the Data Commissioner.iv.Section 64 of the Data Protection Act offers an avenue of appeal to the High Court only if a party is aggrieved by an administrative action taken upon them by the Data Commissioner and this would apply to parties who opt at instituting proceedings at the Data Commissioner.v.The violation of human rights sought in the Petition is not that of privacy alone but also access to information, freedom of movement and residence and it is proper to enjoin parties to the same transaction to preserve court's time.vi.The Petition and Application before this court falls within the exceptions of the doctrine of exhaustion.
Petitioner’s Submissions
31.The petitioner in support of his case filed three sets of submissions through Ricar Advocates LLP. The first set of submissions which are undated cover the issues raised in the 1st respondent’s Preliminary Objection, the second and third set, covers the issues set out in the petition and are dated 23rd July and 30th November 2024 respectively.
32.The first set of submissions addressed the question of whether the issues raised in this petition can be raised before this Court. The Petitioner’s Advocate submitted that the petition raises constitutional questions that can only be determined by this Court which has the jurisdiction to determine whether a right or fundamental freedom has been denied, violated, infringed and threatened under Article 165(3) of the Constitution. In addition, there is the 2nd respondent’s intention to terminate the tenancy.
33.It was argued on behalf of the Petitioner that the mandate of the Data Commissioner as envisaged under the Data Protection Act does not cover the extent of the prayers sought in the petition. Reliance was placed in Kenya Human Rights Commission v Commissions of Authority of Kenya and 4 others (2018) eKLR where it was held that:
34.It was submitted on behalf of the Petitioner that the doctrine of exhaustion is not absolute and has exceptions as held in Ndiara Enterprises limited vs. Nairobi City County Government [2018] eKLR where it was held that:
35.It was further submitted for the petitioner that Section 56 of the Data Protection Act is not couched in mandatory terms and thus does not require the parties to compulsorily lodge complaints before the Data Protection Commissioner. It was thus argued that the Petition is bad in law. Dependence was placed on Makoffu v Kenya Power and Lighting Company Limited (Pet. No. E377 of 2021) where it was held that:
36.On behalf of the petitioner, it was argued that the Petition raised the following constitutional issues for determination: the jurisdiction of this Court, whether the petitioner’s right to privacy was infringed, whether the act of the 2nd respondent contravenes Article 39 of the Constitution, whether the petitioner is entitled to the relief sought.
37.On the first issue, Counsel answered in the affirmative stating that the Court is vested with jurisdiction to determine this matter by virtue of Article 165(3)(d) of the Constitution. Reliance was placed in Law Society of Kenya v Supreme Court of Kenya & another; Abdulahi SC & 19 others [2024) KEHC 7819 (KLR) where it was held that:
38.Counsel relying on the doctrine of stare decisis noted that this Court pronounced itself on a similar issue in Ondieki v Maeda (Petition E153 of 2022) [20231 KEHC 18290 (KLR) as follows:
39.Equal dependence was placed in Koinange vs. Commission of Inquiry into The Goldenberg Affair Nairobi HCMCA No. 372 of 2006 [2006] 2 KLR 529, Jasbir Singh Rai & 3 Others vs. Tarlochan Singh Rai & 4 Others [2013] eKLR and Rift Valley Sports Club vs. Patrick Tames Ocholla Nakuru HCCA NO. 172 of 2002 [2005] eKLR.
40.Secondly, Counsel reiterating the petitioner’s averments and relying on Article 31 of the Constitution, submitted that undeniably the respondents violated the petitioner’s right to privacy as set up the CCTV cameras to spy on him and his family. Moreover, the action of installing the cameras without consulting and getting consent from the petitioner is said to be in breach of Article 26 and 32 of the Data Protection Act.
41.It was noted that the petitioner’s request to access the CCTV camera footage was denied by the 1st respondent hence defeating the assertion that the cameras were actually installed for security. Counsel stressed that although the right to privacy is not absolute the same must be balanced against the right to security of person. It is claimed that the 1st respondent failed to show reasonable grounds as to why she denied the petitioner his right to privacy.
42.Reliance was placed in Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10; others [2015] eKLR where it was held that:
43.On the third issue, Counsel first stated that the 2nd respondent had failed to file a substantive replying affidavit. The respondents were accused of colluding to install the CCTV camera and that a request to re-angle the camera had ignored. It was underscored that while the petitioner does not have an issue with installation of a CCTV camera, the contention was in relation to the angle of the camera which in effect curtails their right to movement in their own house as their every step is being recorded. This problem was argued to be further compounded by the 2nd respondent’s attempt to evict the petitioner from the apartment. These acts are for this reason adjudged to be in violation of Article 39(3) of the Constitution.
44.To support this point reliance was placed in Okello Okello John Livingstone and 6 others v The Attorney General & another. (Constitutional Petition No. 1 of 2005(CA) where it was held that:
45.Accordingly, Counsel submitted that the petitioner was entitled to the relief sought and compensation in terms of general damages for violation of his rights. Reliance was placed in Peter Mauki Kaijenga & 9 others vs Chief of the Defence Forces & another [2019] eKLR where the Court observed as follows:
46.Like dependence was placed in Gitobu Imanyara & 2 others v Attomev General [2016] eKLR, Evelvn College of Design Vs AG and another (2013) eKLR, and Robert Mwangi Mugo v OCS Nvahururu Police Station & 2 others [2022] eKLR.
1st Respondent’s submissions
47.Catherine Muriuki and Company advocates filed submissions dated 31st October 2024 on behalf of the 1st respondent. The 1st respondent directed her submissions on only one issue; namely: whether this Court has jurisdiction to entertain this petition.
48.It was submitted on her behalf that a reading of Section 56 of the Data Protection Act makes it plain that there exists a mechanism for internal dispute resolution where a party is aggrieved by the decision of any person on an issue that contravenes the Act. The manner in which this is to be done is provided under Section 56 and 57 of the Act.
49.Counsel stressed that the petitioner ought to have utilized this process before filing this suit. It was further argued that Section 64 of the Act grants a party aggrieved by the decision of the Data Commissioner to appeal the same before this Court. Reliance was placed in R vs Peterkin ex parte Soni (1972) Imm AR 253 where it was held that:
50.Like dependence was placed in Section 9(2) of the Fair Administrative Action Act and Republic vs National Environmental Management Authority [2011] eKLR.
2nd Respondent’s Submissions
51.The 2nd respondent through Osoro and Company Advocates filed submissions dated 22nd October 2024. The issues raised for discussion were: whether the High Court could determine claims arising from allegations of infringement of Article 31(c) and (d) of the Constitution on the right to privacy before they were determined by the Office of the Data Protection Commissioner (Data Commissioner); whether the Data Commissioner had the jurisdiction to determine whether a person’s privacy rights in the Bill of Rights had been denied, violated, infringed or threatened; whether the Data Commissioner had the jurisdiction to interpret the Constitution; what was a constitutional issue and what was the nature of a constitutional petition; what did interpretation of the Constitution entail and what was the distinction between determining the denial, violation, infringement or threat to the privacy rights in the Bill of Rights and interpreting the Constitution.
52.On the first issue, Counsel submitted that the Court is supposed to only exclusively deal with constitutional issues. Considering this, where there are alternative avenues provided for dispute resolution, there should be postponement of judicial consideration of such issues until the provided mechanisms are exhausted.
53.Counsel submitted that the Data Protection Act is deliberately enacted to ensure that claims arising from Article 31(c) and (d) of the Constitution are determined by Data Protection Commissioner as the first port of call. Counsel added that the petitioner had not demonstrated the exceptions to this doctrine in filing this petition.
54.Counsel also submitted that the petitioner had not demonstrated how the 2nd respondent had violated his rights as it was clear that it was the 1st respondent who had installed the CCTV camera.
Analysis and Determination
55.Having perused the pleadings and submissions of the parties herein, this Court identified the following as the issues for determination in this Petition; namely:i.Whether this Court has jurisdiction to determine this petition.ii.Whether the petitioner’s right to privacy under Article 31 of the Constitution was violated by the respondents; andiii.Whether the petitioner is entitled to the reliefs sought
Whether this Court has jurisdiction to determine this petition
56.Jurisdiction refers to authority of the Court to legally hear and determine a dispute. The High Court in the case of Benson Makori Makworo v Nairobi Metropolitan Services & 2 others [2022] KEHC 26937 (KLR), cited with approval the decision of Court appeal in in explaining the concept of jurisdiction as follows:
57.When a jurisdictional issue is raised, it is incumbent upon the Court to inquire into the matter and ascertain if it has jurisdiction or not. In doing so, the Court is guided by the Constitution, the relevant statutes or the principles that have been developed through judicial precedents as was observed by the Supreme Court in the Matter of the Interim Independent Electoral Commission [2011] KESC 1 (KLR);
58.The jurisdiction of the High Court to hear and determine disputes relating to violation of rights and fundamental freedoms is provided for in Article 23 (1) as read Article 165 (3) (b) as follows:23(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.Article 165 (3) Subject to clause 5, the High Court shall have-b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
59.It must however be appreciated that a court’s jurisdiction is not exercised in vacuum. As was held in the case of Benson Ambuti Ambega & 2 Others v Kibos Distillers Limited (2020) eKLR
60.This brings me to the doctrine of exhaustion raised by the respondents. The doctrine bars the Court from adjudicating a dispute where a statute or a regulatory regime has provided other alternative means of accessing a remedy instead of directly seeking the relief from the Court. Constitutionally, this finds support in Article 159 of the Constitution which requires that in exercising judicial authority, courts and tribunals shall be guided by the principles stipulated thereunder and this includes ‘alternative forms of dispute resolution…’
61.Elaborating on the doctrine, the Court in John Githui v Trustees, Nakuru Golf Club [2019] KEHC 5523 (KLR) stated:
62.There are however exceptions to the exhaustion doctrine as was explained in Krystalline Salt Limited v Kenya Revenue Authority [2019] KEHC 6939 (KLR) where it was held as follows:
63.The gist of this case is the violation of right to privacy under Article 31 (c) of the Constitution. It provides:
64.It is also necessary to illustrate how the Courts have demarcated the scope of this right. This was judicially considered in the case of Kenya Human Rights Commission v Communication Authority of Kenya & 4 Others [2018] eKLR where the Court elaborated thus:
65.The question however becomes, does it fall within the realm of this Court to adjudicate upon this matter at this juncture?
66.The respondents’ contention is that this is not a dispute for this Court as its determination ought to be in accordance with the procedure provided for under Section 56 of the Data Protection Act, 2019 and only finding its way into the High Court through an appellate process as specified under Section 64 as an appeal against the decision of the Data Commissioner.
67.The Petitioner maintained that this is an issue that pertains the violation of his rights and fundamental freedom to privacy under Article 31 ( c) of the Constitution which within the jurisdiction of this Court to decide by dint of Article 23 as read with Article 165 (3) (b) of the Constitution.
68.It is necessary that the Court explores the relevant provisions of the Data Protection Act, 2019 in order to determine if the matter should come directly to this Court or the Court should in the first instance defer to the determination of the Data Commissioner.
69.To start, the preamble to the Data Protection Act, 2019 declares 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.”
70.The Data Commissioner is appointed under Section 6 of the Act with functions and powers attached to this office being stipulated under Section 8 and 9 of the Act.
71.On the issue of complaints, the Act under Section 56 provides:
72.On the outcome, Section 58 (1) of the Act provides that:
73.Section 64 of the Act provides as follows concerning an appeal:
74.Further, under Section 2 of the Data Protection Act, in the context of this case, the 1st respondent who installed the CCTV for collection of data would assume the designation of ‘Data Controller’ which the Act defines as follows:
75.On the other hand, the Act defines the petitioner would be the ‘Data Subject’ which is defined in Section 2 as follows:
76.‘Processing of information’ or data is defined to mean any operation or sets of operations which is performed on personal data or on sets of personal data whether or not by automated means, such as:
1.collection, recording, organisation, structuring;
2.storage, adaptation or alteration;
3.retrieval, consultation or use;
4.disclosure by transmission, dissemination, or otherwise making available; or
5.alignment or combination, restriction, erasure or destruction.
77.The Act further under Section 25 outlines the principles of Data protection as follows:
78.Section 18(1) of Act further provides that no person shall act as a data controller or data processor unless registered with the Data Commissioner. In same manner Section 26 of the Act outlines the data subject right’s follows:a.to be informed of the use to which their personal data is to be put;b.to access their personal data in custody of data controller or data processor;c.to object to the processing of all or part of their personal data;d.to correction of false or misleading data; ande.to deletion of false or misleading data about them.
79.Section 32 (1) of the Act sets out the threshold for a breach of data as follows:
80.It clear from the examination of the above statutory provisions that the grievance by the Petitioner is matter that involves data violation and thus any complaint relating to breach of privacy by unlawful collection of personal data ought to have been lodged with the Data Commissioner for investigation and taking of necessary enforcement action before rushing to file this Petition. As held in Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR;
81.It is the finding of this Court that the instant petition offends the doctrine of exhaustion of remedies. For this reason, the petition is hereby struck out. Each Party to bear its own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH MARCH, 2025.……………………………………L N MUGAMBIJUDGEConstitutional Petition No. E225 of 2023 – Judgment Page 16 of 16**//