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Supreme CourtPartially AllowedPetition 13 (E015) of 2022

CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others

Supreme Court of Kenya
8 September 2023
Philomena Mbete MwiluP.M. MwiluSmokin Charles WanjalaS.C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. LenaolaWilliam OukoW. Ouko
14,979 words in judgment
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The bottom line

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Publishing a child's identity violates their privacy and best interests, regardless of public interest.

What this practically means

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Seven minors were charged with arson. Media houses published their names, photos, and school. The Supreme Court ruled this violated the children's right to privacy and their right to have their best interests considered paramount. The court emphasized that proving a constitutional violation is enough to get a remedy—you do not need to prove you lost money. Public interest does not automatically trump a child's rights.

Executive summary

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This appeal arose from the publication by four media houses of the names, images, and school of seven minors who were arraigned in a magistrates' court on arson charges. The appellants, suing as next friends of the minors, filed a constitutional petition in the High Court alleging violations of the minors' right to privacy under article 31(c) and the best interests of the child under article 53(2) of the Constitution. The High Court dismissed the petition, holding that the publication was a matter of public interest and that the appellants failed to prove loss or damage. The Court of Appeal affirmed this decision. On a second appeal to the Supreme Court under article 163(4)(a), the Supreme Court framed three issues: whether the courts below erred in placing public interest over the children's best interests; whether proof of damage was required in constitutional violation claims; and whether costs should have been awarded against the appellants. The Supreme Court allowed the appeal, setting aside the judgments of both lower courts. It held that the limitations imposed by the Children Act on publishing children's identities in criminal proceedings are reasonable and justifiable under article 24. The court declared that the respondents violated the minors' right to privacy under article 31(c) and the right to have their best interests considered of paramount importance under article 53(2). The court further held that once a petitioner proves a constitutional violation on a balance of probabilities, the court must vindicate the right even without proof of loss or damage. The court ordered each party to bear their own costs in all courts, finding the litigation was in the public interest.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Court of Appeal erred in placing public interest in the publication of the images and identities of children in a criminal trial over and above the children’s best interest.
  2. 2.whether upon proof of violation of the minors’ fundamental rights and freedoms, the appellants were required to go further and prove damage or injury suffered as would be the case in normal civil litigation; and
  3. 3.whether the High Court was right to award costs against children in public interest litigation.

Key legal issues

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01

Whether the Court of Appeal erred in placing public interest over the children's best interest in publishing the images and identities of children in a criminal trial.

Holding

The courts below erred in raising the status of public interest over the protection and the best interest of the children and their rights to privacy without properly subjecting the limitation to the provisions of article 24. The intrusion upon privacy of the children by publishing their particulars was demeaning not only to their dignity as individuals, but also to the integrity of their parents and the wider society.

Reasoning

The Supreme Court conducted a holistic and purposive reading of articles 50(2), (8), 53 on one hand and articles 33, 34 and 35 on the other, testing the limitations against article 24. It found that the limitations imposed by the Children Act on the public hearing of cases involving children and the publication of their images, names and school are reasonable and justifiable. The court held that the respondents violated articles 31(c) and 53(2) of the Constitution by publishing the names and images of the minors, and that the benefit of upholding the best interest of the appellants outweighed the loss the respondents stood to suffer.

p. 29
02

Whether upon proof of violation of fundamental rights and freedoms, the appellants were required to prove damage or injury suffered as in normal civil litigation.

Holding

It was erroneous for the two courts below to insist that the appellants prove damage or loss after proving a violation. Once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered.

Reasoning

The court distinguished constitutional remedies from tortious claims, noting that under article 23(3) of the Constitution, the court may grant appropriate relief including a declaration of rights, an injunction, or an order for compensation. The purpose of constitutional relief is not necessarily to punish the violator but to vindicate the right of the victim. The court relied on its decisions in Wamwere & 5 others v Attorney General and William Musembi & 13 others v Moi Educational Centre Co Ltd & 3 others to hold that the approach in awarding damages in constitutional rights violation cases is different from that in tortious claims.

p. 32
03

Whether the High Court was right to award costs against children in public interest litigation.

Holding

The legal action was initiated for the enforcement and advancement of constitutional justice and in the public interest, and therefore costs should not have been awarded against the appellants.

Reasoning

The court found that the prayers sought were aimed at addressing real and genuine public interest issues in the criminal justice system, and the questions raised transcend the circumstances of this case and go beyond the private interests of the minors involved. The court noted that the Court of Appeal did not award costs against the appellants even after losing the appeal, and ordered parties to bear their own costs.

p. 33

Legal principles established

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  • Children's right to privacy (Article 31(c)) and best interests (Article 53(2)) outweigh general public interest in publication.
  • Limitations on publishing child identities in the Children Act are reasonable and justifiable under Article 24.
  • Proving a constitutional right violation on a balance of probabilities is sufficient for a remedy; proof of specific damage or loss is not required.
  • Courts must vindicate violated rights even without evidence of quantifiable loss.
  • Costs should not be awarded against minors in public interest litigation aimed at enforcing constitutional justice.

Court orders

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  1. 1.The petition dated June 24, 2022 is hereby allowed.
  2. 2.The Judgment of the Court of Appeal dated May 13, 2022, in Civil Appeal No 296 of 2017 is hereby set aside, save for the determination on the costs of the appeal.
  3. 3.The judgment of the High Court dated February 2, 2017 in Constitutional Petition No 56 of 2013 is hereby set aside in its entirety.
  4. 4.A declaration hereby do issue that the respondents violated the appellants’ right to privacy as guaranteed under article 31(c) of the Constitution.
  5. 5.A declaration hereby do issue that the respondents violated the appellants’ right to have their best interests considered of paramount importance as guaranteed under article 53(2) of the Constitution.
  6. 6.Parties to bear their own costs of this appeal, in the High Court and the Court of Appeal.
  7. 7.We hereby direct that the sum of Kshs. 6,000/-, deposited as security for costs upon lodging of this appeal, be refunded to the appellants.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority
Smokin Charles Wanjala
S.C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority

Wrote the judgment

On appeal from
Court of Appeal at Nairobi
Civil Appeal No 296 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Permanent order of injunction prohibiting the 1st to 4th respondents from publishing the appellants’ images or names on any media platform

The offending publication was pulled down and there was no evidence of a threat or likelihood of repetition more than 10 years after the act complained of.

p. 33

Costs

Parties to bear their own costs of this appeal, in the High Court and the Court of Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly allow the appeal.
p. 33 Outcome
The petition dated June 24, 2022 is hereby allowed.
p. 34 Final Orders
A declaration hereby do issue that the respondents violated the appellants' right to privacy as guaranteed under article 31(c) of the Constitution.
p. 35 Declaration of Rights Violation
A declaration hereby do issue that the respondents violated the appellants' right to have their best interests considered of paramount importance as guaranteed under article 53(2) of the Constitution.
p. 35 Declaration of Rights Violation
Parties to bear their own costs of this appeal, in the High Court and the Court of Appeal.
p. 35 Costs Order
Therefore, once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence of any loss or damage suffered as a result of the violation.
p. 31 Proof of Damage in Constitutional Violations
For these reasons, and with respect, we agree with the appellants that the courts below erred in raising the status of public interest over the protection and the best interest of the children and their rights to privacy without properly subjecting the limitation to the provisions of article 24.
p. 29 Balancing Competing Rights

Key timeline

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Before 2013
Seven minors charged with arson; media publishes their names, images, and school.
2017-02-02
High Court dismisses petition, awards costs against minors.
2022-05-13
Court of Appeal upholds High Court decision.
2023
Supreme Court allows appeal, declares rights violated, sets aside costs.

Practical implications

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For lawyers

Shift in constitutional remedy proof

The Supreme Court clarified that in constitutional petitions, proving the violation itself is the key threshold. You do not need to prove specific financial loss or damage to get a remedy like a declaration of rights. This lowers the evidentiary burden for claimants in human rights cases, distinguishing constitutional claims from torts.

For businesses

Strict limits on reporting minors

Media houses cannot justify publishing a child's identity by citing public interest in a criminal case. The Children Act's protections are absolute unless strictly justified under Article 24. This ruling requires media to prioritize a child's dignity and best interests over newsworthiness, with significant legal risk for non-compliance.

For individuals

Your child's privacy is paramount

If a media house publishes your child's name or image without consent, you can sue for violation of constitutional rights. You do not need to prove you lost money—just that the right was violated. The court must take your child's best interests as the most important consideration, even against public interest.

Frequently asked questions

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Can media publish names of minors accused of crimes in Kenya?+

No. The Supreme Court in J.A.O v Nation Media Group ruled that publishing the names, images, or school of a minor violates their right to privacy (Article 31) and their right to have their best interests considered paramount (Article 53(2)). Public interest in the crime does not automatically override these rights.

Do I need to prove financial loss to sue for constitutional rights violation in Kenya?+

No. The Supreme Court held that once you prove on a balance of probabilities that your constitutional right was violated, the court must vindicate that right. You do not need to prove specific damage or loss, unlike in a normal civil lawsuit for torts.

What is the best interest of the child principle in Kenya?+

Article 53(2) of the Kenyan Constitution makes the best interests of a child the paramount consideration in all matters affecting them. The Supreme Court confirmed this principle overrides general public interest when publishing information about children involved in legal proceedings.

Can children be ordered to pay costs in public interest cases in Kenya?+

The Supreme Court ruled that costs should not be awarded against minors in public interest litigation. Since the case aimed to enforce constitutional justice and advance public interest issues in the criminal justice system, the children should not bear the financial burden of costs.

Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "CMM (Suing as the Next of Friend of and on Behalf of CWM) & 6 others v Standard Group & 4 others", Case Analysis (2023). Petition 13 (E015) of 2022. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/68/eng@2023-09-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.