1. Nature of the Case

A constitutional petition concerning the alleged violation of the Petitioner’s rights to human dignity and privacy under Articles 28 and 31 of the Constitution of Kenya arising from the non-consensual taking and circulation of nude photographs through WhatsApp and Facebook.

2. Factual Background

Petitioner’s Material Facts

• The Petitioner, a married woman and mother of two, alleged that the Respondent, whom she knew and had met privately and publicly, took nude photographs of her without her consent and subsequently shared them on WhatsApp and Facebook, including on a public page titled “Leaked Videos in Kenya.”
• The images went viral within Machakos County and beyond.
• Upon discovering the circulation, the Petitioner received calls and screenshots from friends and relatives, faced public ridicule and mockery, and deactivated her social media accounts.
• She suffered severe psychological distress, fell into depression with suicidal ideation, and sought medical counselling.
• Her marriage collapsed as a result, and she relocated to her parents’ home with her two children.

Respondent’s Defense

The Respondent denied the allegations, contending that:

1. The images were not linked to his social media accounts
2. He was admitted to Coptic Hospital from 15th to 17th March 2023 and could not have circulated them
3. The images also depicted him, so he would not have shared them.
4. He only learned of the photographs when his mother inquired about them via WhatsApp, having received them from his father.

3. Procedural History

The Petition was filed under Articles 19, 20, 21, 22, 23, 24, 25, 28, 31, 48, 50 and 159(2)(a) and (b) of the Constitution. The Petitioner filed a supporting affidavit and later a supplementary affidavit, together with photographs, treatment notes and screenshots. Both parties filed witness statements and written submissions. The Court considered the petition, affidavits, evidence and submissions before determining the issues raised.

4. Issue for Determination

1. Whether the petition met the threshold of a constitutional petition
2. Whether the electronic evidence tendered was admissible
3. Whether the Petitioner had proved, on a balance of probabilities, that the Respondent took and/or circulated the nude photographs
4. Whether the Petitioner was entitled to damages.

5. Arguments

Petitioner’s Arguments

The Petitioner relied principally on Articles 28 and 31 of the Constitution. She argued that the Respondent’s taking and subsequent dissemination of the photographs violated her dignity and privacy. She relied on authorities including S.W.M v G.M.K [2012] eKLR on the need to identify the right violated, the manner of infringement, and the nature and extent of the injury. She sought Kshs.20,000,000 as compensation.

Respondent’s Arguments

The Respondent argued that the Petition did not satisfy the constitutional-petition threshold under Anarita Karimi Njeru v Republic [1979] KLR 154 and related authorities. He denied circulating the photographs and argued that there was no direct evidence linking his WhatsApp or Facebook accounts to their dissemination. He also challenged the admissibility of the photographs and screenshots under sections 106A and 106B of the Evidence Act. In the alternative, he argued that Kshs.100,000 would be adequate compensation.

6. Court’s Analysis

Constitutional threshold: The Court held that the Petition satisfied the constitutional threshold because it specifically identified Articles 28 and 31, set out the alleged conduct constituting the infringement and particularized the resulting injury.

Electronic evidence: Although the screenshots and photographs were not accompanied by a section 106B(4) certificate, the Court held that the evidence was admissible in the peculiar circumstances. The Petitioner explained the source and manner of obtaining the screenshots. The Court relied, among other authorities, on Roshanara Ebrahim v Ashleys Kenya Ltd & 3 Others [2016] eKLR.

Proof of circulation: The Court held that, given his possession or control of the intimate material, he bore a heightened duty of care to prevent unauthorized disclosure. He did not provide a credible explanation of how the photographs left his control and entered the public domain. Under section 119 of the Evidence Act, the Court was entitled to draw an adverse inference. On a balance of probabilities, the Court found that the Respondent was responsible for or facilitated the circulation.

Constitutional violation: The Court held that the circulation violated the Petitioner’s rights to dignity under Article 28 and privacy under Article 31.

7. Court Holding

8. Remedies

9. Significance of the Decision