Lilian Bosibori Onduko v James Squier & 1 other

the alleged taking and dissemination of images and/or video recordings depicting the Petitioner’s residence, and the circulation of allegations concerning her within neighbourhood WhatsApp groups. 2. The Petition is premised principally on Articles 28 and 31 of the Constitution and seeks the following reliefs; a. A declaration that the actions of the Respondents are in violation of the Petitioner’s rights under Articles 28 and 31 of the constitution. b. A permanent injunction against the Respondents restraining them from harassing the petitioner in any form or manner including through calls, text and WhatsApp messages. c. A permanent injunction against the Respondents restraining them from accessing the Petitioner’s House (Redacted) Shinyalu Close and from taking any videos or images of the house. d. An order to compel the 1st and 2nd Respondents to delete the WhatsApp group named “Trapped Dog Loresho” as well as any other similar WhatsApp group with immediate effects. e. Compensation in the sum of Ksh 1,000,000/= for violation of the Petitioner’s rights, for mental anguish, anxiety and for damaging the Petitioner’s reputation. f. Costs of this petition g. Payment in e and f above together with interests thereon at court rates from the date of judgment until payment in full.” 3. The Respondents contend that this Court ought to decline jurisdiction, invoking the doctrine of constitutional avoidance, and asserting that the Petitioner ought to have first pursued alternative dispute resolution mechanisms available to her. 4. The Petitioner avers that she has resided at House Number (Redacted), Shinyalu Close, Loresho since the year 2022, and that she lawfully keeps four dogs at her residence. She depones that on the night of 7th May 2024, the 1st Respondent, accompanied by security personnel from the Loresho South Residents’ Association, approached her gate complaining that the barking of her dogs had disturbed his sleep. The Petitioner further avers that in the course of that encounter, the 1st Respondent accused her of animal abuse and asserted that he had taken photographs and videos in support of that allegation. 5. The Petitioner further states that on the following day, a team from the Kenya Society for the Protection and Care of Animals visited her residence and, upon inspection, found no evidence of animal abuse. In that regard, the Petitioner avers that she reported the matter to the police. 6. The gravamen of the Petitioner’s complaint is that, thereafter, the Respondents inundated her with persistent telephone calls and messages in which she was described as an animal abuser. She further alleges that the 2nd Respondent indicated that “30+ videos” of her home had been circulated across various social media platforms, as well as to diverse persons and authorities. The Petitioner also pleads that a WhatsApp group styled “Trapped Dog Loresho” was created for the purpose of discussing her and monitoring her residence and movements. 7. In support of her case, the Petitioner relies on her own affidavits and annexures thereto, as well as an affidavit sworn by her veterinarian, Dr. Lilyan Mathai, to the effect that the dogs are in good health, are routinely examined, and are neither abused nor neglected. 8. The Respondents’ account differs in material respects. They depone that they reside at House (Redacted), Shinyalu Road, and that from about October 2023 they experienced persistent and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 2

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distressing dog noise within the neighbourhood, which adversely affected their sleep, work, and quiet enjoyment of their home. They state that they sought to identify the source of the noise through residents’ communication channels and, being animal lovers, either formed or joined a group concerned with animal welfare and the treatment of dogs within the locality. 9. The Respondents further aver that on 7th May 2024, the 1st Respondent proceeded to the Petitioner’s gate with a view to seeking an amicable resolution of the dispute. The 1st Respondent denies having taken any photographs or video recordings of the Petitioner’s residence and maintains that any images or recordings referenced were confined to capturing noise or sound from his balcony, and were neither of nor from the Petitioner’s home. 10. It is the Respondents’ position that they made bona fide attempts to resolve the dispute through the chairperson of the residents’ association, and that the present Petition improperly elevates what is, in essence, a neighbourly nuisance and animal welfare dispute into a constitutional controversy. Parties’ Submissions 11. The Petitioner submits that the Petition is properly before this Court, as it discloses specific and continuing violations of her constitutional rights to human dignity and privacy. She contends that the Respondents’ conduct amounts to harassment and an unlawful intrusion into her private affairs, through alleged surveillance and the dissemination of material relating to her home and personal life. 12. It is further the Petitioner’s case that the doctrine of constitutional avoidance is inapplicable in the circumstances, the alleged violations being clear, direct, and central to the dispute. She maintains that any purported alternative mechanisms would neither afford adequate nor effective relief in the face of an ongoing infringement of rights. In that regard, the Petitioner invokes constitutional and statutory principles relating to privacy and data protection, contending that the unauthorized use or circulation of images and personal information concerning her residence and private life constitutes a violation of the Constitution. 13. The Petitioner urges the Court to find that the Petition is well founded and proved, and that the reliefs sought therein are merited. 14. The Respondents, for their part, submit that the Petition is misconceived and offends the doctrine of constitutional avoidance, contending that the grievances raised therein are amenable to resolution through ordinary civil claims and established statutory frameworks, including those governing defamation and data protection. They further assert that the Petitioner has failed to exhaust available alternative dispute resolution mechanisms, maintaining that avenues for neighbourhoodbased resolution existed but were neither adequately invoked nor pursued. 15. On the merits, the Respondents submit that the threshold for defamation has not been met in law, and that their conduct does not amount to harassment or to any violation of the Petitioner’s constitutional rights. To the contrary, they contend that their actions constituted a lawful and reasonable response to persistent noise emanating from the Petitioner’s residence, as well as a bona fide expression of concern regarding animal welfare. They accordingly urge the Court to dismiss the Petition with costs. Analysis and Determination 16. Having carefully considered the pleadings, the affidavits on record, and the respective submissions of the parties, the Court is of the considered view that the following issues arise for determination: i. Whether the Petition is properly before this Court, having regard to the doctrines of constitutional avoidance and exhaustion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 3

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ii. Whether the Respondents violated the Petitioner’s constitutional rights. iii. Whether the tort of defamation has been established. iv. Whether the Petitioner is entitled to the reliefs sought. Whether the Petition is properly before this Court, having regard to the doctrines of constitutional avoidance and exhaustion 17. The Respondents urge this Court to decline jurisdiction on the basis of the doctrine of constitutional avoidance. The Supreme Court, in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), stated that “the principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.” 18. The contours of this doctrine were further elaborated in KKB v SCM & 5 others [2022] KEHC 289 (KLR), where the Court explained that constitutional avoidance denotes a preference to determine a dispute on an alternative legal basis where such a course is available and capable of affording the litigant the relief sought. The Court, however, identified clear exceptions to the doctrine, including where the constitutional violation is clear and directly relevant, where no apparent alternative remedy exists, or where recourse to a non-constitutional process would be futile or wasteful. 19. Closely related is the doctrine of exhaustion, whose foundational principle is that where a clear procedure for the redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure ought to be strictly followed, as was held in Ngunjiri v Kiambi & another [2025] KEHC 3793 (KLR). 20. In Geoffrey Muthinja Kabiru and 2 Others v Samuel Munga Henry & 1756 others [2015] eKLR, the Court underscored the centrality of the doctrine in the following terms: “ It is imperative that where a dispute resolution mechanism exists outside courts the same be exhausted before the jurisdiction of the court invoked. Courts ought to be of a last resort and not the first port of call the moment a storm brews… the exhaustion doctrine is a sound one and serves the purpose of ensuring that there is postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.” 21. Notwithstanding the foregoing, this Court’s original jurisdiction under Article 165(3)(b) of the Constitution to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened remains intact. Where a party properly pleads and demonstrates a violation of constitutional rights, the Court must exercise caution not to relegate such a claim to alternative processes which, in the particular circumstances, may not afford an adequate forum or effective relief. This position accords with established judicial authority that the doctrine of exhaustion admits of exceptions, particularly where the claim constitutes a bona fide rights enforcement action and not a mere “bootstrap.” 22. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, a five-judge bench observed that where a suit is primarily instituted to enforce fundamental rights and freedoms, and it is demonstrated that the alleged constitutional violations are not merely “bootstraps” or framed in the language of the Bill of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 4

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Rights as a pretext to access the Court, such a suit is not barred by the doctrine of exhaustion. The Court emphasized that the enforcement of fundamental rights and freedoms is, in the first instance, a mandate reserved to the High Court. 23. Applying the foregoing principles, the Respondents’ reliance on the doctrine of exhaustion, to the extent that it is predicated on informal neighbourhood engagements, does not disclose the existence of a mandatory dispute resolution mechanism whose exhaustion would operate as a jurisdictional bar. The jurisprudence on exhaustion contemplates procedures prescribed by the Constitution or statute, and not informal or voluntary arrangements devoid of legal compulsion. 24. Moreover, even assuming the existence of statutory mechanisms, the present Petition alleges a continuing pattern of harassment and intrusion into the Petitioner’s privacy, and seeks injunctive relief against private individuals. The core of the claim is the ongoing violation of the Petitioner’s constitutional rights, including the monitoring of her residence and the dissemination of information concerning her private life, conduct which is said to have caused fear, anxiety, and a diminished sense of personal security. In these circumstances, alternative remedies would not necessarily provide timely or effective relief commensurate with the nature, persistence, and seriousness of the alleged infringements. 25. The Court notes further that even formal statutory or alternative dispute resolution mechanisms, where they exist, are unlikely to provide timely or effective redress in circumstances of ongoing harassment and intrusion into personal privacy. The Petitioner’s claim involves persistent acts affecting her daily life and safety within her home. Relegating her to such mechanisms would be futile and undermine the constitutional imperative to provide a meaningful forum for the vindication of rights under Articles 28 and 31. Accordingly, the doctrines of exhaustion and avoidance do not operate to bar the Petition. 26. The Court is also satisfied that the Petition meets the constitutional threshold for precision in pleading. In Anarita Karimi Njeru [1979] eKLR, the Court stated: “ … if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 27. The Court of Appeal in Mumo Matemo v Trusted Society of Human Rights alliance [2014] eKLR reaffirmed this requirement, while cautioning that “precision is not coterminous with exactitude,” the court held: “ …the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court… Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle” 28. In the present case, the Petition clearly identifies the specific constitutional provisions alleged to have been violated, namely Articles 28 and 31, and sets out the nature of the impugned conduct, including the alleged harassment, surveillance, and dissemination of information. It further articulates with reasonable precision how such conduct is said to have infringed the Petitioner’s constitutional rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 5

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29. In the premises, and for the foregoing reasons, the Court finds and holds that the Petition is properly before it, and is not barred by either the doctrine of constitutional avoidance or the doctrine of exhaustion Whether the Respondents violated the Petitioner’s constitutional rights. 30. Article 31 of the Constitution guarantees every person the right to privacy, including the right not to have information relating to their family or private affairs unnecessarily required or revealed, and not to have the privacy of their communications infringed. Kenyan jurisprudence has consistently treated the unauthorized use, publication, or dissemination of images or private personal information as implicating the right to privacy and, by extension, human dignity. 31. In Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR, the Court observed that privacy is a fundamental human right central to human dignity, and that individuals are entitled to a private sphere free from excessive and unsolicited intrusion. 32. The right to privacy encompasses the ability to control personal information and to conduct one’s affairs free from unwarranted interference. In T. O. S. v Maseno University & 3 others [2016] eKLR, it was held that the use or publication of an individual’s image without consent constitutes a violation of privacy, as the individual retains the sole authority to determine whether another may access or observe their private life. 33. In the present case, the Petitioner alleges that the Respondents took and circulated videos and photographs of her residence, with the 2nd Respondent reportedly indicating that “30+ videos” had been disseminated. The Respondents deny possessing such material, asserting that any recordings were limited to capturing noise and did not involve the Petitioner’s home. However, this denial is not persuasive. The evidence placed before the Court, including the communication attributed to the 2nd Respondent, was not sufficiently rebutted, and the Respondents’ account remains general and evasive. 34. It is well established that the unauthorized use or dissemination of an individual’s images or private information may constitute a violation of privacy, even where the actor asserts an alternative or ostensibly lawful motive. 35. The Data Protection Act, 2019, gives effect to Article 31(c) and (d) by establishing a framework for the lawful collection, processing, and dissemination of personal data. It requires that such processing be grounded in consent or other lawful justification, and be undertaken in a manner that is necessary, proportionate, and lawful. 36. The Act reinforces the constitutional guarantee by ensuring that individuals retain control over information relating to their private lives, and by prohibiting unauthorized surveillance, monitoring, or dissemination of personal data. 37. Before considering whether any purported lawful justification existed, the Court must address a critical evidentiary issue. There is no material before this Court demonstrating that the Petitioner engaged in any conduct amounting to animal cruelty within the meaning of the Prevention of Cruelty to Animals Act. Under section 3 of the Act, cruelty is defined through specific acts such as ill-treatment, neglect, or the causing of unnecessary suffering. None of these elements has been established. On the contrary, the uncontroverted veterinary evidence indicates that the animals were healthy and properly cared for. 38. Furthermore, while the Respondents may have been motivated by concerns for animal welfare, the law sets out a clear enforcement framework. Sections 30 and 31 of the Prevention of Cruelty to Animals Act provide for recourse to authorized officers or the police, who possess the statutory powers to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 6

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investigate and enforce the law. The statutory scheme does not authorize private individuals to conduct surveillance, monitor a neighbour’s property, or circulate images and allegations through informal channels. 39. Similarly, the Nairobi City County Dog Control and Welfare Act, 2015, establishes administrative mechanisms for addressing issues relating to dog control and nuisance within the County. The Respondents did not demonstrate that they invoked any of these lawful avenues. Instead, they resorted to persistent communication, alleged recording, and dissemination of material relating to the Petitioner’s home. 40. Notably, the Respondents admit to making recordings, albeit framed as capturing “noise.” Even on that account, such conduct directed at a private residence and coupled with dissemination constitutes an intrusion into the Petitioner’s private sphere. Their failure to act within the confines of the law, and their resort to self-help measures, transformed what may have been a legitimate concern into a course of conduct amounting to harassment. 41. The Respondents may contend that their actions were undertaken in good faith or in the public interest. While lawful purpose may, in appropriate circumstances, justify the processing of personal data, no evidence has been adduced to demonstrate compliance with the requirements of legality, necessity, or proportionality. In any event, the sustained pattern of conduct, including repeated communications and dissemination of material, exceeds any permissible scope of public interest. 42. I draw guidance from the consistent jurisprudence affirming that an infringement of the right to privacy inherently engages the right to human dignity. In Joel Mutuma Kirimi & another v National Hospital Insurance Fund (NHIF) [2020] KEHC 6347, the Court held that the unauthorized use of a person’s image constitutes a violation of both privacy and dignity. Similarly, in Masibo v Nation Media Group Limited [2023] KEHC, the Court found that the publication of photographs without consent infringed Articles 31(c) and 28 of the Constitution. These authorities underscore the inseparable link between privacy and human dignity. 43. On the totality of the evidence, the Court is satisfied that the Respondents intruded into the Petitioner’s private sphere through unauthorized monitoring and dissemination of material, in violation of Article 31. 44. Article 28 guarantees the right to inherent dignity and its protection. The evidence demonstrates a sustained pattern of conduct comprising repeated and unrequested communications, accusations, and surveillance, which caused the Petitioner fear, anxiety, and a diminished sense of personal security within her home. Such conduct amounts to harassment. 45. Under section 27 of the Computer Misuse and Cybercrimes Act, cyber harassment includes wilful communication likely to cause fear, detriment, or distress. The Respondents’ repeated communications and group messaging meet this threshold. The harassment and intrusion into privacy are intertwined, each reinforcing the other. 46. The Court is therefore satisfied that the Petitioner has established a violation of her right to dignity under Article 28, arising from sustained harassment and intrusion into her private life. 47. In the result, the Court finds that the Respondents’ conduct comprising unauthorized surveillance, dissemination of material, and persistent harassment constitutes a continuing violation of the Petitioner’s constitutional rights to privacy and dignity under Articles 31 and 28. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 7

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Whether the tort of defamation has been established 48. Flowing from the analysis above, while the Petition and affidavits reference reputational harm, mere assertions that one’s reputation has been tarnished are insufficient to establish a claim for defamation. The primary cause of action is constitutional, seeking declarations, injunctions, and compensation for rights violations. Defamation is a distinct tort, requiring proof of a false statement communicated to a third party and resulting reputational damage. Here, the evidence focuses on harassment and invasion of privacy rather than the elements necessary to sustain a defamation claim. While reputational harm may inform the assessment of constitutional damages, it does not meet the legal standard for a private law defamation action. 49. As defined in Black’s Law Dictionary (8th Edition), defamation is the act of harming another’s reputation by making a false statement to a third party. A statement is defamatory if it tends to lower a person in the estimation of right-thinking members of society, exposes them to public hatred, contempt, or ridicule, or causes them to be shunned or avoided. Establishing defamation requires clear and specific evidence that the statement was false, published, and caused reputational damage. 50. In contrast, the Respondents intruded upon the Petitioner’s private sphere, including her home and personal affairs, through unauthorized monitoring and dissemination of materials, in breach of Article 31. They subjected the Petitioner to repeated communications, accusations, and harassment, causing fear, anxiety, and a diminished sense of personal security, thereby violating her right to dignity under Article 28. 51. These actions constitute a continuing infringement of the Petitioner’s constitutional rights and justify the grant of appropriate remedies, including declaratory and injunctive relief, as well as compensation. 52. The Court’s findings focus on the Respondents’ intrusion into the Petitioner’s private sphere through unauthorized monitoring, dissemination of information, and repeated harassment which collectively violated her constitutional rights under Articles 28 and 31. Any reputational harm arising from these actions is incidental and does not satisfy the requirements of a private law defamation claim. 53. Defamation is a separate tort requiring proof of falsity and publication to a third party. The evidence before the Court does not meet this threshold, and that limb of the Petition therefore fails. 54. Accordingly, having considered the foregoing, the Court finds that the defamation limb of the Petition fails. Whether the Petitioner is entitled to the reliefs sought 55. Article 23 of the Constitution empowers this Court to grant appropriate relief, including declarations, injunctions, and compensation. In the present case, such relief is granted solely on the basis of the established violations of the Petitioner’s constitutional rights to privacy and dignity, and not on any independent or freestanding claim in defamation. 56. The Court of Appeal has emphasized that constitutional damages are assessed as public law remedies, guided by what is appropriate and just. As observed in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR (and subsequently affirmed in 2022), the primary purpose of a constitutional remedy is not compensatory or punitive, but to vindicate the rights violated. 57. In the present matter, the Petitioner has sought compensation in the sum of Kshs 1,000,000 for the infringement of her constitutional rights, encompassing the mental anguish, anxiety, and distress occasioned by repeated harassment and intrusion into her private sphere. In determining an https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 8

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appropriate award, the Court is guided by established comparative jurisprudence in Kenya relating to violations of privacy and dignity. In Masibo v Nation Media Group Limited (supra), damages were awarded for the unauthorized publication of photographs, recognizing a breach of Articles 31(c) and 28 of the Constitution. 58. Similarly, in Muindi v Mwandigha [2025] KEHC 15816 (KLR) (Petition 6 of 2023), the Court awarded substantial damages for the taking and circulation of private photographs without consent, underscoring the imperative to safeguard personal dignity and privacy. These authorities collectively affirm that compensation is not merely available but constitutionally warranted in cases where privacy and dignity are infringed, and that the assessment of damages must be informed by the nature, persistence, and demonstrable impact of the violation. 59. Having established sustained harassment and unauthorized intrusion into the Petitioner’s private sphere, the Court finds that an award of compensation is both justified and necessary to vindicate the violated rights. In light of the pleaded sum and the principle of proportionality, the Court hereby awards the Petitioner Kshs 1,000,000 as appropriate redress for the infringement of her constitutional rights to privacy and dignity. 60. The Court now considers the specific prayers in the Petition. Prayer (d), which seeks an order compelling the deletion of a WhatsApp group and any similar groups, is declined. The group involves third parties who are not before the Court, and granting such relief would raise significant practical, procedural, and proportionality concerns. The Court is satisfied that the objectives of this relief are adequately addressed through declaratory and injunctive orders restraining the Respondents from further harassment, intrusion, or unauthorized imaging or recording of the Petitioner’s home, in addition to the award of compensation, costs, and interest. Conclusion 61. In sum this Court is satisfied that the Respondents’ conduct comprising persistent harassment, unauthorized surveillance, and dissemination of the Petitioner’s private information constitutes a clear and continuing infringement of her constitutional rights to privacy and dignity under Articles 31 and 28 of the Constitution. The Petition’s defamation limb is not established and is accordingly dismissed. In consequence, the Petitioner is entitled to declaratory and injunctive relief restraining any further intrusion or harassment, and to compensation in the sum of Kshs 1,000,000. The rights to privacy and dignity are fundamental, inviolable, and enforceable, and that any contravention thereof will be met with the full rigour of the law. 62. For the reasons set out above, the Court makes the following final orders: a. A declaration be and is hereby issued that the actions of the Respondents violated the Petitioner’s rights under Articles 28 and 31 of the Constitution. b. A permanent injunction be and is hereby issued restraining the Respondents, jointly and severally, from any unrequested communication with the Petitioner in any form or manner including through calls, text messages, and WhatsApp messages. c. A permanent injunction be and is hereby issued restraining the Respondents, jointly and severally, from accessing the Petitioner’s residence at House (redacted) or any other residence of the Petitioner, and from taking any videos or images the Petitioner, the Petitioner’s property, the Petitioner’s pets, or any aspect of the Petitioner’s life. d. Prayer (d) of the Petition is declined. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 9

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e. The Petitioner is awarded compensation in the sum of Kenya Shillings One Million (Kshs 1,000,000) with interest on the same at court rates from the date of this judgment until the date of full payment. f. The costs of the Petition are awarded to the Petitioner. Orders accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 19TH DAY OF MARCH 2026 BAHATI MWAMUYE, MBS JUDGE In the presence of: Counsel for the Petitioner: Ms. Irene Odhiambo Counsel for the Respondent: Mr. Onyaro Court Assistant: Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4642/eng@2026-03-19 10

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