Stephen Gitagama & 3 others v Jimi Richard Wanjigi & 1 other

Son of James Maina and Wambui Magari. Husband of Irene. He was blessed with two children; son Maina Wanjagi Jr and daughter Wambui Wanjagi who are enrolled at Instiotut Le Rosey, Switzerland. A special thanks to the Kwacha Industries which Richard called home for 25 years and whose employees we are happy to call our family. We especially thank the many friends in politics who have stood with us at this trying moment. Family and friends are meeting daily for prayers and burial arrangements at his wife’s Muthaiga home, Nairobi from 5pm The cortege leaves Lee Funeral Home (Nairobi) on Tuesday 6th February, 2018 at 7 am. Funeral Service will take place in the same day at All Saints Cathedral at 10 am and burial at Langata Cemetery at 3 pm. Fare thee well James.” 2. This publication was the genesis of the petition dated 27th March 2018, filed by the respondents against the appellants. According to the respondents, that publication was “a grotesque and chilling death warning and announcement of the 1st respondent”. The photo in the publication, the respondents pleaded, was the 1st respondent’s, and the publication was a communication of “a death warning, issuing a promise to kill” the 1st respondent “and offering for public display, personal and private details of the petitioner’s family with a view to further incite criminal acts against the petitioners and their children.” It was further pleaded that the said publication was “designed and borrowed from a tactic used world over by killer squads to torment, psychologically torture their agents, display their private information to members of criminal gangs across the globe with a view to further advance the criminal enterprise and, whenever appropriate, enhance a bounty.” 3. According to the respondents, the appellants, by that publication, violated their fundamental rights and freedoms and those of their family members. It was pleaded that the appellants, as operators within a regulated media industry, owed the respondents a duty of care not to publish the impugned announcement and, in so acting, were negligent, particulars thereof being set out. The said acts, it was contended, constituted constitutional torts as the 1st respondent’s other family members, including his aging father, mother and siblings, were tormented by the said publication and were subjected to psychological torture and trauma as a result thereof. Equally traumatised were the 1st respondent’s business associates across the globe who, as a result of the publication, had to make hasty commercial decisions that inadvertently affected the 1st respondent’s business. 4. The respondents set out the various articles of the Constitution which, in their view, were violated as a result of the said publication and sought the following reliefs: 1. A declaratory order that the actions of the appellants violated the respondents’ rights under Articles 28, 29, and 31 of the Constitution; 2. A declaratory order that the actions of the appellants were in violation of Articles 33 and 34 of the Constitution; 3. An order that the appellants pay the respondents compensation for the violation of their fundamental rights and freedoms; 4. An order that the appellants pay the respondents damages for the constitutional tort and acts of negligence committed against them https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 2

page 2 of 14

5. A prohibitory order prohibiting the appellants from further violating the respondents’ fundamental rights and freedoms; 6. A prohibitory order prohibiting the appellants from further publishing private and family details of the respondents including those of their children 7. Costs of the petition. 8. Any further Relief or Orders that the Court may deem just and fit to grant. 5. In opposition, the 4th appellant’s Head of Legal and Training, Sekou Owino, filed a replying affidavit sworn on 7th May 2018 wherein he averred: that the appellants did not publish the notice of death of the 1st respondent; that the advertisement, which was in respect of an obituary, expressed to be of one “James Richard Wanjagi”, was received from and paid for by a member of the public who identified himself as Jared; that the 4th respondent has, as per its standard procedure, an "Ad Centre" where persons intending to place advertisements in the Daily Nation newspaper visit with the text of the advertisement and any accompanying photograph(s); that Jared gave his details for the purposes of obtaining a quotation and paid for the service like every other person who places an advertisement in a newspaper; that while the information in the obituary published on 7th February 2018 appears to refer to the 1st respondent and his family, the same would not have been immediately apparent to the 4th appellant’s employees because the 1st respondent is famously known as “Jimi Wanjigi”, and that the said employees are not generally expected to know/recognize the 1st respondent’s appearance; that it would have been difficult for anyone who had no reason to suspect foul play or malice to think that the text of the advertisement presented by a member of the public was intended to refer to the 1st respondent; that while the photograph of the 1st respondent was part of the advertisement, members of the public and the employees of the 4th appellant do not, and should not be expected, to generally know the appearance of the 1st respondent; and that while the advertisement had some details of the 1st respondent’s family, none of this information was being made public for the first time as there are a number of previous news articles as well as online publications that contain details of the 1st respondent’s family, including their names, their places of residence, and the school that the 1st respondent's children attend. 6. The appellants denied that the advertisement communicated a death warning and incited criminal acts against the respondents and their children as alleged. Upon realizing that the impugned advertisement was intended to give the impression that the 1st respondent had died, it was deposed, the appellants tendered an apology to the respondents and took urgent steps to correct the erroneous information by reporting the matter to the police for investigations and further, by publishing an article in the Daily Nation of 8th February 2018 to give an account of how the advertisement ended up in their newspaper. 7. It was averred that the acting Chief Executive Officer and the Advertising Director (the 1st and 3rd appellants, respectively) visited the respondents at their home on 7th February 2018 to personally apologize to the respondents, a fact that was admitted by the 1st respondent during an interview captured in the Daily Nation newspaper of 9th February 2018; that the 4th respondent's Head of Security made a report of the incident to the police so that investigations could be carried out, while the 4th appellant, through its newspapers and television channel, continued to provide information to the public about the incident, including publishing a photograph of the individual who placed the erroneous advertisement in the 4th appellant’s newspaper. According to the appellants, while the publication of the erroneous obituary was unfortunate, the 4th appellant and its employees did not instigate it. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 3

page 3 of 14

8. In addition it was deposed: that the petition did not disclose a violation of the respondents’ rights by the appellants; that there are no specific allegations of violations of the respondents’ rights by the 1st , 2nd and 3rd appellants, and even if the petition discloses an arguable case against the 4th appellant, the other appellants were not necessary parties to the petition and ought to be removed as parties; that while the 4th appellant and its officers were extremely remorseful about the false obituary that was published in its newspaper, the respondents did not state the particular constitutional torts committed; that all evidence pointed to the fact that the appellants acted responsibly in dealing with the matter; and that the publication of the erroneous obituary was not intended to drive the 4th appellant’s newspaper sales and that, apart from the payment for placing the advertisement, the 4th appellant did not derive any benefit from it. 9. In her judgment, the learned Judge identified the main issues for determination as: whether the 1st, 2nd and 3rd appellants were properly sued in the proceedings; whether the petition met the threshold of a constitutional petition; and whether the respondents were entitled to the orders sought in the petition. 10. Citing Articles 22 and 258 of the Constitution, as well as the cases of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR, the learned Judge found: that the rights to human dignity, freedom from torture and privacy under Articles 28, 29 and 31 of the Constitution are closely interrelated or intertwined, and that a violation of one may imply a violation of the other; that it was not disputed that the impugned publication was made concerning the 1st respondent, which publication, the appellants conceded, in their own replying affidavit, caused the respondents pain and anguish; and that from the said affidavit, it was evident that the appellants conceded that not only did they publish the impugned publication, but that the said article was erroneous and caused the respondents pain and anguish. 11. As regards the right to human dignity, the learned Judge found: that there is no dignity that can be attributed to death as a dead person does not enjoy the rights and privileges of a living person; that the making of a false publication regarding a person’s death, when the said person is still alive, calls to question the intention of the person making such a publication, which can only be construed to connote that its maker had an ill motive or intention to harm the persons likely to be affected by the said death publication; and that, on the authority of the cases of JW1 & Another v Standard Group Ltd & Another [2015] eKLR, TOS v Maseno University & 3 Others [2016] eKLR and the Supreme Court of New Zealand in Brooker v the Police [2007] NZSC 30, cited in the case of Barbra Georgina Khaemba v Cabinet Secretary, National Treasury & Another [2016] eKLR, the publication had the effect of infringing on the respondents’ rights to privacy by unnecessarily revealing their family and private affairs contrary to the clear provisions of Article 31(c) of the Constitution. 12. On the right to freedom from torture, the learned Judge found: that it was not disputed that the impugned publication caused the respondents pain and anguish as acknowledged by the appellants when offering their apology; and that, based on Black’s Law Dictionary, 10th edition, the decision of the European Court of Human Rights in the Greek case of 1969 Y.B. Eur. Conv. on H.R. 186 (Eur. Comm’n on H.R and the case of Samwel Rukenya Mburu v Castle Breweries, Nairobi HCC 1119 of 2003, the impugned publication subjected the respondents to torture, cruel and degrading treatment. 13. On the basis of the above findings, the learned Judge held that the respondents’ rights under Articles 28, 29 and 31 of the Constitution were violated. It was, however, found that apart from the respondents’ assertion that the 1st, 2nd and 3rd appellants were employees of the 4th appellant, no material was placed before the court to show that they were directly involved in the actual publication of the impugned funeral notice and hence were not properly sued in the proceedings. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 4

page 4 of 14

14. Guided by the provisions of Article 23 of the Constitution as well as the South African cases of Grutter v Lombard and Another 2007 (4) SA 89 (SCA) and Angella Wells v Atoll Media (PTY) Ltd & Anor, Western Cape High Court Case No. 11961/2006, and distinguishing the instant case from this Court’s decision in the case of James Kimeu Mulinge v Nation Media Group [2018] KECA 184 (Mulinge Case), the learned Judge found: that as a responsible and one of the leading media houses in this country, the 4th appellant owes a duty to the public for every single publication that it makes in all its media platforms and cannot cede this responsibility to third parties and in this case, a ‘faceless’ individual who they only referred to as Jared; that the 4th appellant entered into a contract with the customer who allegedly placed and paid for the impugned advertisement and that it is therefore either an act of mischief or gross negligence on the part of the 4th appellant to claim that the customer could not be identified; that the conclusion any right-thinking person can arrive at is that either the 4th appellant was the real originator of the impugned advertisement or that, for reasons best known to it, was shielding the real maker of the offensive obituary from scrutiny; and that this scenario exacerbates the respondents’ claim and denies them the opportunity to know the real face(s) behind their woes and the intentions in making the offensive advertisement. 15. Citing section 3(2) of the Media Council Act, it was found: that in the instant case, one cannot say that the 4th appellant acted in an accountable and transparent manner in failing to disclose the identity of the real maker of the impugned advertisement; and that irrespective of the originator or the purpose of the said publication, the fact still remained that it was made in the 4th appellant’s newspaper and had the effect of violating the respondents’ rights. 16. Consequently, the learned Judge concluded that the respondents were entitled to the orders sought in the petition and granted the following reliefs: 17. a. A declaration order that the actions of the appellants violated the respondents’ rights under Articles 28, 29 and 31 of the Constitution. b. An order that the 4th appellant pays each of the respondents Kshs. 4,000.000 as damages for the violation of their fundamental rights and freedoms. c. A prohibitory order prohibiting the 4th appellant from further publishing private and family details of the respondents including those of their children in the manner that violates their fundamental rights and freedoms; d. An order that the 4th appellant pays the costs of this petition. Dissatisfied with that decision, the appellants lodged this appeal in which they challenge the decision on the grounds that: 1. The learned Judge erred in holding that the respondents' rights under Articles 28, 29 and 31 of the Constitution were violated by the 4th appellant. The publication in question could not have subjected the respondents to torture or cruel and degrading treatment. 2. The learned judge erred in holding that the publication in the 4th Appellant's newspaper subjected the respondents to psychological torture in the absence of a medical report ascertaining that. 3. The learned judge erred in failing to consider and should have considered that the information on the 1st respondent that was published in the 4th appellant's newspaper was already in the public domain. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 5

page 5 of 14

18. 19. 4. The Learned judge erred in holding that the publication of details of the respondents that were already in the public domain in the 4th appellant's newspaper violated the respondents’ right to privacy. 5. The learned judge erred in failing to consider and should have considered the fact that the 4th appellant was not the originator of the impugned advertisement, which was a paid advertisement placed in the 4th appellant's newspaper by a member of the public. 6. The learned judge erred in failing to follow the binding Court of Appeal judgment in Civil Appeal No. 85 of 2017 James Kimeu Mulinqe v Nation Media Group. 7. The learned judge erred in determining that the appellant was either the real originator of the offending obituary or was shielding the real maker of the offensive obituary from scrutiny. 8. The learned judge erred in failing to award costs to the 1st, 2nd and 3rd appellants despite having held that the respondents did not make out any case against them, 9. The learned judge erred in awarding general damages to the respondents. 10. The learned judge erred in awarding damages to the respondents in the sum of Ksh. 4,000,000.00 each, which was inordinately high in the circumstances. The respondents were, similarly, not satisfied with the whole judgement and cross-appealed by a Notice of Cross of Appeal dated 18th September 2019 contending that: 1. The learned Judge erred in law when she failed to find against the 1st, 2nd and 3rd appellants when the three appellants had not even contested the factual assertions made against them in the petition. 2. The learned Judge erred in fact when she found that the appellants were remorseful for publishing the impugned advertisement when in their conduct during the proceedings before her they attributed the violations to an unknown third party and not themselves. The learned Judge ought to have taken the totality of the appellants' conduct before and during the court proceedings to determine if they are truly remorseful for the violation of the appellants rights and freedoms. 3. The learned Judge erred in law when after finding that there was violation of the fundamental rights and freedoms of the appellants' children, she failed to award any compensation for the violation of the children's fundamental rights and freedoms. 4. The learned Judge erred in law and in fact when she failed to take into account and consider the novel nature of the violation of the appellants' rights and freedoms and the grotesque manner in which that violation was executed in arriving at the compensation quantum she awarded to the appellants. The respondents pray for orders: 1. that the 1st, 2nd and 3rd appellants are equally liable for the violation of the appellants and their children's fundamental rights and freedoms. 2. that the Appellants pay compensation to the appellants for violation of the fundamental rights and freedoms of their children whose rights were equally found to have been violated. 3. that the Court enhance the compensation to be paid by the Appellants to the appellants for violation of their fundamental rights and freedoms, to a sum higher than Kshs. 8,000,000.00. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 6

page 6 of 14

20. On 22nd October 2025, this appeal came before us for plenary hearing when learned senior counsel, Mr Kiragu Kimani, appeared for the appellants and learned counsel, Mr Willis Otieno, appeared for the respondents. Both counsel relied on their written submissions which they highlighted briefly before us. 21. On behalf of the appellants, it was submitted: that, based on the authority of Mulinge’s Case (supra), the 4th appellant had nothing to gain and gained nothing from the publication of the advertisement other than the advertisement fees; that the respondents did not provide a medical report or even allege any possible symptoms of such psychological torture; that pain and anguish does not necessarily amount to psychological torture, thus in the absence of any evidence of psychological or mental harm suffered by the appellants, the reasonable conclusion is that no such harm was suffered or that if any was suffered, then it was not of the level to meet the requirements of proving torture or cruel, inhuman and degrading treatment; that this Court should find that the learned Judge erred in holding the 4th appellant violated the respondents’ rights under Article 29 of the Constitution; that the 4th appellant cannot be liable for paid for advertisements placed by customers and the information published in its newspapers as part of the paid for advertisement; that the person liable for violation of the right to privacy should be the customer who identified himself as Jared; that the High Court erred in failing to consider that the publication of the respondents’ family details were already in the public domain, thus not a violation of the respondents’ right to privacy; that the respondents did not demonstrate that their rights to dignity were violated by the 4th appellant as the actions complained of were not instigated by any of the appellants but by a member of the public; and that there was no basis for the award of Kshs. 4 million which was inordinately excessive and unjustifiable, especially when compared to the damages awarded by courts in other cases for violations of rights. In support of this limb, reference was made to the High Court Petition No. 133 of 2011 (consolidated with Petitions No. 68 of 2011, 39,30,37 and 35 of 2010): Jaoko Noo Ooro & 5 Others vs Attorney General [2013] eKLR and Robert Njeru Nyaga v AG [2014] eKLR in submitting that should the Court be persuaded that there were violations of rights, the damages ought to be nominal. 22. In response to the cross appeal, the appellants submitted: that there was no basis for finding the 1st, 2nd and 3rd appellants had violated the respondents’ rights as there were no specific allegations made against them in the petition or in the affidavits filed by the respondents; that the appellants’ conduct before and during the proceedings demonstrated that they empathised with the respondents and were remorseful for the effects that the publication of the paid advertisement may have had on them; that there is no basis to fault the finding of the learned Judge that the appellants, and particularly the 4th appellant, was remorseful; that there was no basis to reach a finding that the rights of the respondents’ children were violated and to make any award on that account as the children are neither parties to these proceedings or the petition nor was the petition filed and reliefs sought on their behalf; that there is no basis for enhancing the damages awarded by the High Court as they were excessive in the circumstances and only nominal damages should be awarded in this case; and that the Court should find the grounds of cross appeal lacking in merit and dismiss the cross appeal with costs to the appellants, and allow their appeal. 23. On the other hand, the respondents submitted: that the publication by the appellants was a gross violation of the fabric of the respondents' right to privacy as enshrined in Article 31 of the Constitution as it revealed the private details of the appellants’ family, including the names of their children and the institutions of learning which they attend; that the respondents had a legitimate expectation to privacy which the appellants failed to respect; that the publication of the death promise was exacerbated by a well-known fact that death announcements of assassination targets have prominently been displayed in some countries as an advance promise to the targets that they would be killed in a short while, thus the psychological torment the respondents were taken through knowing that a death promise had been https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 7

page 7 of 14

placed on their heads, was untold; that the respondents were tormented to think that their children were equally targeted and information about their location shared with all and sundry, including persons who may be minded to cause physical harm to them; that on the authority of the case of Samwel Rukenya Mburu v Castle Breweries, Nairobi (2003) eKLR, the learned Judge was right to find that the impugned publication infringed on the respondents' rights to freedom from torture, the appellants having admitted to causing pain and anguish to them and their family; and that the learned Judge was right in holding that there is no dignity that can be attributed to death as a dead person does not enjoy the rights and privileges of a living person. 24. On the authority of the case of MWK & Another v Attorney General & 3 Others [2017] eKLR, it was contended that the death announcement caused the 1st respondent to be viewed as having ceased to exist and was just a body to be disposed of; that the information published about them has never been in the public domain as there has never been a death publication of the 1st respondent in any platform; that the electronic evidence from unverified online blogs sought to be introduced by the appellants offended the basic text of section 106B of the Evidence Act; that the appellants, having admitted to publishing the offending words, cannot, at this stage, turn around and claim that another unidentified person is responsible for the same; that the Mulinge Case is distinguishable to the extent that in that case, the plaintiff knew the identity of the person who had taken out the advertisement, while in the present case, even the appellants were not able to identify the alleged person who took out the advertisement; that the trial court should have found against the 1st, 2nd and 3rd appellants as they did not file any response to the petition and therefore the factual expositions against them in the petition were unchallenged; and that the learned Judge was right in granting the reliefs of compensation and a prohibitory order against the appellants as permitted under Article 23 of the Constitution. 25. In support of their cross appeal, the respondents submitted that the learned Judge rightfully found that the publication infringed on their fundamental rights and freedoms and of their family members, thus this Court should compensate the children for the demonstrated, proven and upheld violation of their rights by the appellants; that, on the authority of the case of John Atelu Omilia & another v Attorney General & 4 Others [2017] eKLR, this Court should enhance the compensation to Kshs.90 million in order to take into account compensation to the respondents’ children; and that this Court should dismiss the appeal with costs and allow their cross appeal with costs. 26. We have considered the submissions made before us in this appeal. In determining the appeal, we are alive to the fact that we are a first appellate court. Although the hearing before the High Court was by way of affidavit evidence, our jurisdiction, on a first appeal, remains the same as in the cases where oral evidence is taken since affidavits contain evidence on the basis of which the decision is arrived at. Accordingly, we are under a duty) to reconsider and re-evaluate the affidavit evidence on record and draw our own conclusions thereon. However, the caution exercisable where the appeal arises from an oral hearing, that we neither saw nor heard the witnesses testify and to give allowance for that fact, does not arise. While we must accord due deference to the findings of fact by the trial court, should we be satisfied that the findings were based on no evidence, on a misapprehension of the evidence, or on wrong principles, we are entitled to interfere. (See Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Jabane v Olenja [1986] KLR 661). 27. The respondents’ case as pleaded before the High Court was premised on violations of the respondents’ right to human dignity, right to freedom from torture and right to privacy under Articles 28, 29 and 31 of the Constitution. It is important to note that under our Constitution, the Bill of Rights applies both vertically and horizontally since Article 20(1) of the Constitution provides that: The Bill of Rights applies to all law and binds all State organs and all persons. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 8

page 8 of 14

28. It therefore follows that the appellants are bound by the Bill of Rights. 29. According to the respondents, the publication portrayed the 1st respondent as a dead body which had ceased to exist and was to be disposed of. The learned Judge, in dealing with the allegation of violation of the right to dignity expressed herself as hereunder: “On the right to human dignity, I find that logically speaking there is no dignity that can be attributed to death as a dead person does not enjoy the rights and privileges of a living person. I also find that the making of a false publication regarding a person’s death, when the said person is still alive, calls to question the intention of the person making such a publication. To my mind, such a publication can only be construed to connote that its maker had an ill motive or intention to harm the persons likely to be affected by the said death publication.” 30. The right to human dignity is protected under Article 28 of the Constitution and is expressed as follows: Every person has inherent dignity and the right to have that dignity respected and protected. 31. The right to human dignity, according to the case of Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) SCR (2) 516, is the foundation of all other rights and, together with the right to life, forms the basis for the enjoyment of all other rights. Put differently, if a person enjoys the other rights in the Bill of Rights, the right to human dignity will automatically be promoted and protected, and it will be violated if the other rights are violated. To that extent, we agree with the learned Judge that this right is closely interrelated and intertwined with the other rights. As expressed by Albie Sachs in The Strange Alchemy of Life and Law (OUP) at page 213: “ Respect for human dignity is the unifying constitutional principle for a society that is not only particularly diverse, but extremely unequal.” 32. It was thus noted by the Constitutional Court of South Africa in S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) (O’Regan, J.) at para 327 that: “ The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.” 33. In the same decision, Chaskalson, P. opined that: “ The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.” 34. Most international instruments, including, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on the Elimination of Racial Discrimination affirm, in their preambles, that human dignity is the underlying foundation of international human rights law. 35. In our constitutional set up, human dignity is not just a right. Article 10(2) of the Constitution, which sets out examples of what constitute our national values and principles of governance, distinctively https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 9

page 9 of 14

recognises human dignity as one of the values and principles, apart from its centrality as a human right. Article 19(2) of the Constitution provides that: The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. 36. Human dignity is, therefore, not only a justiciable right under Article 28 of the Constitution, but is also a constitutional value and principle in our Constitution. The objective of the above discourse is to show that the right to human dignity cannot be compartmentalised and dealt with in isolation from the other rights. 37. As regards the right to privacy, Article 31(c) provides that: Every person has the right to privacy, which includes the right not to have(c) 38. Information relating to their family or private affairs unnecessarily required or revealed; The Constitutional Court of South Africa (Ackermann, J.) in Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996), while pronouncing itself on the right to privacy, expressed itself as follows: “ The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community…In South African common law the right to privacy is recognised as an independent personality right which the courts have included within the concept of dignitas. Privacy is an individual condition of life characterised by seclusion from the public and publicity. This implies an absence of acquaintance with the individual or his personal affairs in this state. In Financial Mail (Pty) Ltd v Sage Holdings Ltd it was held that breach of privacy could occur either by way of an unlawful intrusion upon the personal privacy of another, or by way of unlawful disclosure of private facts about a person. The unlawfulness of a (factual) infringement of privacy is adjudged in the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court. Examples of wrongful intrusion and disclosure which have been acknowledged at common law are entry into a private residence, the reading of private documents, listening in to private conversations, the shadowing of a person, the disclosure of private facts which have been acquired by a wrongful act of intrusion, and the disclosure of private facts contrary to the existence of a confidential relationship. These examples are all clearly related to either the private sphere, or relations of legal privilege and confidentiality. There is no indication that it may be extended to include the carrying on of business activities.” 39. From that decision, instances in which the right to privacy may be violated include unlawful intrusions upon the personal privacy of another, or by way of unlawful disclosure of private facts about a person. In the instant case, violation of the right to privacy is alleged to have been occasioned by the disclosure of private facts about the 1st respondent. These facts involved his family, and the information disclosed was the name of his parents, wife, children, their residence and the children’s learning institution. We https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 10

page 10 of 14

agree that, ordinarily, these are facts whose unlawful disclosure would constitute a violation of the right to privacy. 40. In this case, however, the appellants contended, and supported this fact with previous media coverage, that details of the 1st respondent’s family, including their names, their places of residence and the 1st respondent’s children’s learning institution, were already in the public domain, hence the information did not violate the respondents’ right to privacy. In our view, the fact that there had been, in the past, violation of one’s right to privacy does not justify further violation, unless it is proved that the person claiming violation authorised such publication. Whereas the 1st respondent, through his previous complaints, may have given an insight as to his residence and the name of the 2nd respondent, from the material availed, we are unable to find that the particulars of the children were similarly disclosed. We must, however, point out that the petition was not brought by or on behalf of the children. 41. As regards the alleged violation of the rights to freedom from torture, Black’s Law Dictionary (9th Edition) defines it as ‘the infliction of intense pain to the body or mind to punish, to extract a confession or information or to obtain sadistic pleasure,’ and cruel and unusual punishment as ‘punishment that is torturous degrading, inhuman, grossly disproportionate to the crime in question or otherwise shocking to the moral sense of the community.’ Inhuman treatment is defined as ‘physical or mental cruelty that is so severe that it endangers life or health’. 42. In the case before us, the respondents’ cause of action was based on pain and mental anguish. The pain in question was psychological pain. It is true that torture is not restricted to infliction of physical pain, and this was appreciated by the South African Constitutional Court’s decision in Sonke Gender Justice NPC v President of the Republic of South Africa and Others (CCT307/19) [2020} ZACC 26, 2021 (3) BCLR 269 (CC) (4 December 2020) in the following terms: “ It is increasingly acknowledged that the definition of “torture” does not stop at physical suffering. Psychological torture has been interpreted to include all methods, techniques and circumstances which are intended, foreseen or designed to inflict severe mental suffering, even absent physical pain. This includes, for example, isolation, the induction of anxiety through misinformation and violent threats against the incarcerated person or their family, the manipulation of cultural phobia, the withdrawal of access to privileges such as bedding or reading material, the imposition of contradictory or absurd rules, public humiliation and constant surveillance.” 43. The European Court of Human Rights defined torture and inhuman treatment in the Greek Case 1969 Y.B. Eur. Conv. on H.R. 186 (Eur. Comm’n on H.R in the following terms; “The notion of inhuman treatment covers at least such treatment as deliberately causes suffering, mental or physical, which, in the particular situation is unjustifiable. The word “torture” is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be de-grading if it grossly humiliates him before others, or drives him to an act against his will or conscience.” 44. The respondents’ case was that they were subjected to psychological torture in the form of death promise, a tactic that has been deployed successfully in other jurisdictions to warn people of their impending death. In her judgement, the learned Judge found that the publication caused the respondents pain and anguish. While the learned Judge appreciated the definition of “torture” based https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 11

page 11 of 14

on the authorities cited in the judgement, she seemed to have based her finding on the admission, in the replying affidavit, that the publication caused the respondents “pain and mental anguish”. In our view, a finding that an act has caused pain and anguish, without more, does not support a claim of torture. Pain and anguish can even arise from a road traffic accident, but that does not elevate it to torture. As the Supreme Court judicially noted in Ondimu & another v Commissioner of Police & 3 others [2024] KESC 46 (KLR): “We take judicial notice of the fact that various issues can affect one psychologically, for instance, family matters, divorce, bereavement, work, lawsuits and so forth. It however is upon a litigant pleading psychological torture to establish in exact terms, how and when they suffered such. Consequently, the 1st Appellant needed to establish what particular elements caused him psychological torture… In the circumstances, we are not convinced that the Appellants have met the parameters set out elsewhere herein, and we find that the Appellants have not established that the 1st Appellant suffered psychological torture.” 45. The petitioner is required to go further than that and prove that the actions complained of had the effect of inflicting intense pain to the body or mind. In this case, there was no evidence that the publication was purposed to extract a confession or information. It was however alleged that the publication was a communication of “a death warning, issuing a promise to kill” and the tactic was “designed and borrowed from a tactic used world over by killer squads to torment, psychologically torture their agents”. No evidence, was however adduced to prove that this was what the appellants set out to achieve. In paragraphs 8 and 9 of the supporting affidavit of Jimi Wanjigi, the 1st respondent, the respondents explained what, in their view, was the objective intended to be achieved by the said publication, thus: 8. THAT act of the Respondents was partly accentuated with malice and an intention to drive sales of their flagship publication through the public reaction the said publication was going to generate. 9. That in their scheme of things, the Respondents intended to achieve multi-pronged benefits from the said grotesque death announcement; violate our fundamental rights and freedoms, convey a chilling death warning and ultimately economically profit from the public interest the said grotesque publication was intended to generate. 46. In response, the appellants, through an affidavit sworn by Sekou Owino on 7th May 2018, explained the circumstances under which the offending advert was placed before the 4th respondent for publication by a person known as Jared who duly paid for it. Evidence of payment was availed and we have no basis for disputing that payment. Accordingly, the allegation that the 4th respondent published the material in order to gain profits from the newspaper sales are without substance. 47. While acknowledging that the information in the obituary seems to refer to the 1st respondent and his family, and that the photo of the 1st respondent was part of the advertisement, the fact of the advertisement referring to the 1st respondent would not have been immediately apparent to the 4th appellant’s employee who received the advertisement for the reasons that: the name used was not the exact name with which the 1st respondent is famously known, as can be seen from these pleadings; members of the public and the employees of the 4th respondent may not have known or be expected to generally know the appearance of the 1st respondent; and it was averred, without any contest, that the employee who received the advert did not recognise the photograph as being that of the 1st respondent. 48. The deponent proceeded to explain the steps taken by the 4th appellant upon realising that the advert was potentially intended to give the impression that the 1st respondent had died. Its Acting Chief https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 12

page 12 of 14

Executive Officer, accompanied by the 1st and 3rd appellants, visited the respondents’ home the same day of the publication to apologise to them, while a report of the incident was made to the police. The following day, the 4th appellant published an explanation as to the circumstances under which the material was published and the said publication was accompanied by the CCTV footage of the individual who placed the advertisement. The 4th appellant also published a correction of the erroneous information provided in the obituary on print and electronic media. It continued to provide the public with information about the incident, including publishing the photograph of the individual who placed the advertisement, and expressed willingness to cooperate with the respondents and the police in investigating the matter with a view to apprehending the culprit. At the same time, the 4th respondent commissioned its own internal investigations. While expressing remorse about the false obituary, the appellants insisted that they were neither negligent nor did they instigate the publication and hence did not violate the respondents’ rights. 49. We have considered the material placed before us and are satisfied that the erroneous obituary concerning the 1st respondent was placed by a third party, one Jared, and that the appellants took reasonable steps to have the culprit apprehended through lawful means. Apart from the fees charged for placing the said advertisement, there is no evidence that the appellants stood to benefit, financially or otherwise, from the said advertisement. From the manner in which the advertisement was made, it was not immediately discernible that it referred to the 1st respondent since it did not refer to the 1st respondent’s known name, Jimi Wanjigi, but camouflaged it as James Richard Wanjagi. These are totally different names. Similarly, the names of the children were indicated as “Wanjagi”. In light of what we have stated above we cannot fault the appellants. 50. While a publication of one’s alleged death may, depending on the circumstances, amount to a violation of the right to dignity, in this case, we are not satisfied that the respondents proved that their right to freedom from torture was violated. In light of the steps taken by the appellants subsequent to the publication, we find that the culprit in this case was the person who paid for the advertisement. It was not demonstrated that there was any negligence on the part of the appellants. Although the appellants did not have all the particulars of the person who placed the false obituary announcement, there was a camera that captured the face of the person, and the photograph was availed to the police and to the respondents. Every effort was made by the appellants to have him apprehended, but they did not bear fruits. Had the respondents proved that the appellants took no steps to unmask the identity of the culprit, the appellants would have had an uphill task avoiding liability. In the above premises, we find that the respondents failed to prove, a burden which was on them, that the appellants violated the respondents’ right to dignity and privacy. 51. Before concluding this judgement, we must stress that media houses need to put in place mechanisms that ensure that the information given to the public is as accurate as possible. Where such information is from third parties, they must ensure that it is verifiable and that the sources of the information are traceable in the event that the same turns out to be inaccurate. Where it is proved that such information finds its way into the public domain due to the negligence of the media house, they cannot avoid being held liable. 52. In these circumstances, we find that the respondents failed to prove that the appellants violated their rights to dignity and privacy and their right not to be subjected to torture. 53. Consequently, we allow the appeal, set aside the judgement by the trial court and substitute therefor an order dismissing the suit. The result of allowing this appeal is that the cross appeal fails. It is therefore dismissed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 13

page 13 of 14

54. In the circumstances of this case and the unfortunate events leading to the filing of the petition, we make no order as to costs, both before the trial court and in this appeal. 55. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH, 2026. D. K. MUSINGA (PRESIDENT) ……...................................... JUDGE OF APPEAL MUMBI NGUGI ...................................... JUDGE OF APPEAL G.V. ODUNGA ...................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/694/eng@2026-03-25 14

page 14 of 14