Introduction
1. The Petition dated 4 th September 2023 was amended on 25 th March 2025 and is supported by the Petitioner’s affidavit. The Petitioner alleges that the Respondents, through threats and intimidation by their investigation officers, unlawfully obtained Petitioner’s information and used it in violation of the Petitioner’s constitutional right to dignity and privacy.
2. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
A Declaration that:
i. The actions of the Respondents violate constitutional provisions under Articles 28, 31, 47 and 50(4).
ii. The evidence used by the Respondents to terminate the employment contract of the Petitioners was obtained illegally.
An Order:
iii. Compelling the 1 st Respondent to pay the Petitioner and pay a total of Kshs 2 million as damages for infringement of privacy.
iv. Compelling the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents to jointly pay the Petitioner a total of Kshs 800,000.00 for infringement of his right to privacy.
v. Prohibiting the Respondents from further publication publishing, broadcasting or using the information, data or documents against the Petitioner.
vi. The costs of this Petition.
Petitioner’s Case
3. The Petitioner states that he was employed by the 1 st Respondent as a cleaner in 2004. Subsequently, he was re-designated as an Audio-Visual Officer.
4. He depones that on 14 th January 2023, the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents came to his office. He avers that the 4 th Respondent drew his gun and pointed it at him while forcefully taking his phone and asking for the PIN number. At the same time, he proceeded to force the Petitioner to sign documents that were in his office to indicate that, they were found in his possession. He avers that the Respondents then went away with his phone and the documents.
5. He depones that he reported the matter to the Central Police Station vide OB No.186 of 29 th May 2023. He also recorded a statement on 5 th June 2023 together with a witness.
6. He depones that due to the delay in processing the matter by the assigned police, citing that the 4 th Respondent was his colleague, the Petitioner decided to escalate the matter to the 3 rd Respondent. He alleges that despite the promise to follow up on the matter and have the 4 th Respondent write his statement, the 3 rd Respondent also went silent.
7. He claims that the 4 th Respondent later told him that 5 th and 6 th Respondent being ICT officers accessed his phone and procured information that was shared with the 1 st Respondent. Equally, the 7 th Respondent, the 1 st Respondent’s ICT officer, also accessed his email messages, WhatsApp, photos, messages, and Mpesa messages and made copies of the same.
8. He adds that the Respondents also deleted some of his private photos, videos and emails, which caused trouble for his family and spouse. He notes that this information was extracted by the Respondents without his consent and without a warrant.
9. Furthermore, he depones that the 1 st Respondent suspended him on 1 st March 2023 which was extended a further 30 days vide a letter dated 29 th March 2023. He was subsequently summoned to the Staff Disciplinary meeting on 17 th May 2023 and charged with various counts of gross misconduct committed during the course of his employment. He informs that the 1 st Respondent only gave him the information that was in the Preliminary Report but did not share the final evidence relied upon by the Staff Disciplinary Committee.
10. He notifies that his request to be issued these documents was futile. He notes that he protested the decision of the Committee in his letter, dubbing it biased, procedurally flawed and full of illegalities.
11. According to him, the 1 st Respondent relied on the illegally obtained information to terminate his employment, 9 months before its expiry. As a result, he argues that the 1 st Respondent should pay him Ksh.441,342 for the 9 months being a total of his monthly salary of Ksh.49,038.
12. He states that his family has received strange calls, emails, messages since the Respondents illegally accessed his phone. He stresses that his family has suffered anguish, ridicule and torment as a result of the Respondents actions and fears for their life. The Petitioner depones that despite his complaint to the 2 nd Respondent, no action has been taken and neither has he received any communication from the 2 nd Respondent.
13. On this basis, he argues that the Respondents actions of accessing his photos, messages, videos, emails, WhatsApp messages and Mpesa messages without his consent are in violation of his right to privacy and dignity as envisaged under Articles 28 and 31 of the Constitution.
1 st and 8 th Respondents’ Case
14. The 8 th Respondent, the 1 st Respondent’s Director ICT filed a Replying Affidavit sworn on 23 rd May 2025.
15. He deponed that on 12 th January 2023, the then Vice Chancellor, Prof. Stephen K. Gitahi convened a meeting and disclosed that he had received whistleblower information on examination fraud and malpractices, committed by the Petitioner, who was their staff member. In attendance was Director Security, the 4 th Respondent, Ag. Director Audit, Kenneth Gitau and himself.
16. He explains that the whistleblower stated that the Petitioner had colluded with students to get examination leakage, aid in examination impersonation, change examination marks in the system, among other examination malpractices. As a result, the Vice Chancellor directed that the matter be investigated.
17. He depones that the 3 commenced investigations the following day as soon as the Petitioner arrived in his office. They informed the Petitioner of the allegations against him and that they were required to investigate the matter using the internal administrative process. Following his consent, they proceeded to search his table, drawers, computer and related accessories. They further took an inventory of all the stationery related to examinations in the Petitioner’s possession.
18. Further to this, they engaged the ICT staff and security experts, since among the allegations was the Petitioner was altering examination results on the management information system used for examinations referred to as SMIS . These officers were the 5 th , 6 th and 9 th Respondents. He avers that the Petitioner was directed to surrender his phone to the 7 th Respondent of the Security Department, which he did voluntarily . The device was then handed over to the 5 th , 6 th and 9 th Respondents when they arrived in the office, for the purposes of retrieving information deemed relevant in the matter. He informs that this was done in line with the procedure and guidelines adopted by ICT to gather and preserve evidence. He points out that throughout the Petitioner was cooperative and assisted where required, including giving out his PIN number to enable access to his phone.
19. He states that once the ICT analysis of the device was done, a report was issued and submitted to the 4 th Respondent and the acting Director of Internal Audit, to compile an investigation report. Once all the forensic evidence was gathered and a report made, the same was submitted to the Vice Chancellor. He avers that the investigations revealed that the Petitioner had indeed been involved in examination malpractices as claimed by the whistleblower.
20. Considering this, a disciplinary committee was constituted to conduct the disciplinary proceedings against him. The Committee heard the matter and affirmed that he was guilty of the allegations made against him. He even claims that the Petitioner admitted to the allegations of examination related papers that were procured from his office.
21. He underscores that at no point during the process did the Petitioner challenge the manner in which the information was procured and utilized as highlighted in this Petition. The Petitioner only raised the same once the disciplinary proceedings were finalized against him on 26 th May 2023. As such, he deems this Petition as an afterthought.
22. That said, he emphasizes that staff records on disciplinary issues are confidential and only handled by authorized and vetted staff members who maintain reasonable care as they handle the information. On this premise, he affirms that no information concerning the Petitioner’s case was publicly shared or is available, to cause a breach of privacy as alleged.
2 nd Respondent’s Case
23. Opposing the Petition, the 2 nd Respondent filed a Replying Affidavit through its Deputy Data Commissioner, Oscar Otieno sworn on 7 th August 2024.
24. He depones that the Petitioner filed a complaint with the 2 nd Respondent on 31 st August 2023.He states that the 2 nd Respondent is required to investigate complaints within 90 days as provided under Section 56(5) of the Data Protection Act.
25. He states that the 2 nd Respondent conducted a Preliminary Investigation in accordance with Section 5(2) of the Data Protection (Complaints Handling and Enforcement) Regulations. It established that the Petitioner filed the instant Petition 4 days after lodging his complaint. In light of this, the 2 nd Respondent declined the complaint by dint of Regulation 6(2) (c) of the Regulations, in deference to the hierarchy of courts.
26. He underscores that the matter herein revolves around an employment dispute to which the 2 nd Respondent is not a party. As such, he argues that the Petition does not disclose any reasonable cause of action against the 2 nd Respondent.
3 rd Respondent’s Case
27. The 3 rd Respondent in opposition filed Grounds of Opposition dated 16 th June 2025 on the basis that:
i. This Petition offends the doctrine of Constitutional avoidance as enunciated by this Court in Apollo Mboya vs The Attorney General and National Employment Authority Nairobi Constitutional Petition Number E335 of 2023(unreported).
ii. The statutory duty upon the 3 rd Respondent pursuant to Section 24(e) of the National Police Service Act; investigation of crimes, however, Article 245(4) of the Constitution provides that the Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or (c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
iii. The Constitution provides that only the Director of Public Prosecution pursuant to Article 157(4) of the Constitution to (4) shall have power to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
iv. In response to paragraphs 29, 30, 31 and 32 this of the Amended Petition, the 3 rd Respondent states that the Amended Petition violates the doctrine of exhaustion as the Petitioner ought to have filed a complaint with the Independent Police Oversight Authority who Pursuant to Section 5(a) as read with section 6(a) of the Independent Police Oversight Authority Act Cap 86 Laws of Kenya, have the power to investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for prosecution, compensation, internal disciplinary action or any other appropriate relief, and shall make public the response received to these recommendations.
v. The 3 rd Respondent though not privy to the contents of paragraphs 33 to 39 of the Amended Petition, the Petitioner has not shown that he has exhausted the elaborate complaints mechanisms provided for pursuant to Section 56 t0 58 of the Data Protection Act Cap 411C.
vi. In response to paragraph 51 of the Amended Petition, the Petitioner has not brought any evidence to support the claims thereat.
vii. There also no orders sought as against the 3 rd Respondent or sought to be enforced by the 3 rd Respondent making him non-suited.
viii. This Amended Petition therefore does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR , and on that ground alone, we urge that this Petition should fail. That apart from citing omnibus provisions of the Constitution, the Petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements, particularly in respect of the 1 st and 2 nd Respondents.
ix. This Petition is an abuse of the Court Process and ought to be dismissed as against the Respondents.
5 th Respondent’s Case
28. The 5 th Respondent filed his Replying Affidavit sworn on 23 rd May 2025 wherein he depones that they went to the Petitioner’s office on 13 th January 2023, alongside the 6 th and 9 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand.
29. He depones that the 8 th Respondent instructed them to check the desktop computer and Petitioner’s phone for any evidence on the allegations of engaging in examination malpractice. The 7 th Respondent who was holding onto the phone gave it to them to investigate. He notes that the Petitioner issued them the PIN number to access his phone and wrote down his PIN number on a paper for ease of access, without any reservations. He informs that the security officers left the office and left them investigating the devices until the close of the day.
30. He notes that the 8 th Respondent on 15 th January 2023 which was a Sunday, directed him to continue the investigations the following day. In like fashion, the 7 th Respondent issued him the Petitioner’s phone where he continued to retrieve evidence on 16 th January 2023. Upon conclusion of the investigation, he submitted the phone to the 7 th Respondent and prepared a Report. He sent the Report to the 8 th Respondent and also the 6 th and 9 th Respondents via email on the same day.
31. He informs that they also investigated the Petitioner’s colleague one, Peter Juma who he shared the office with, however did not find any evidence against him.
6 th Respondent’s Case
32. Similarly, the 6 th Respondent filed his Replying Affidavit on 26 th May 2025. He depones that the on 13 th January 2023, he went to the Petitioner’s office with the 5 th and 9 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand. They were instructed to check the Petitioner’s desktop computer and phone for any evidence on the allegations of engaging in examination malpractice.
33. He depones that the 7 th Respondent gave them the Petitioner’s phone. He notes that the Petitioner voluntarily issued them the PIN number to access his phone and wrote it down for them.
34. He depones that upon checking the desktop and phone, they documented the evidence they found. He underscores that a similar investigation of the Petitioner’s colleague one, Peter Juma who he shared the office with, did not avail any evidence against him. He avers that the acting Director of Internal Audit, Kenneth Gitau also joined them and took an inventory of all the documents that were present in the Petitioner’s office.
35. He states that he left the office at around 2pm where he left the 5 th Respondent continuing the investigations. Subsequently, the 5 th Respondent on 16 th January 2023 shared with him the Preliminary Report of the investigations.
9 th Respondent’s Case
36. In the Replying Affidavit sworn on 12 th June 2025, the 9 th Respondent depones that they went to the Petitioner’s office on 13 th January 2023, alongside the 5 th and 6 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand.
37. He depones that the 8 th Respondent instructed them to check the desktop computer which is owned by the 1 st Respondent, for any evidence on the allegations of engaging in examination malpractice, in accordance with the ICT Guidelines for electronic evidence gathering. In addition, the 7 th Respondent gave them the Petitioner’s phone to investigate. He notes that the Petitioner issued them the PIN number to access his phone without resisting. He avers that the Petitioner even went ahead and wrote his PIN number on a paper and handed it to them for ease of access into the phone.
38. He details that their investigation involved review of the access logs of the computers owned by the institution, the university email communications on the desktop computer. He avers that the acting Director of Internal Audit, Kenneth Gitau took an inventory of all the documents that were present in the Petitioner’s office.
39. He informs that they also investigated the Petitioner’s colleague one, Peter Juma who he shared the office with, however they did not find any evidence against him. He points out that when they arrived at the office, the 4 th Respondent was not in the office and neither did he witness the alleged gun use to coerce the Petitioner.
40. Following the investigations, he states that he received the Report on 16 th January 2023 from the 5 th Respondent.
Petitioner’s Submissions
41. The Petitioner through Orego and Odhiambo Advocates filed two sets of submissions dated 29 th May 2025 and 17 th July 2025. Counsel identified the issues for determination as: whether this Court has jurisdiction to entertain the matter , whether the actions of the Respondents herein amounted to gross violation of the Petitioner's constitutional rights and whether the Petitioner is entitled to the relief sought .
42. On jurisdiction, it was submitted on behalf of the Petitioner that this Court has jurisdiction to hear and determine the Petition by virtue of Article 165(3)(b) and (d) of the Constitution as the matter involves violation of the Petitioner’s rights by the Respondents. Counsel contended that contrary to the Respondents assertion, the Petition is not about employment. Reliance was placed in Independent Electoral and Boundaries Commission v Maina Kiai and 5 others [2017] KECA 477 (KLR) where it was held that:
“In view of the foregoing, we conclude that the High Court had jurisdiction to determine the constitutionality of the impugned provisions of the Elections Act and the regulations made thereunder, and the fact that the 1 st , 2 nd and 3 rd respondents could arguably have raised the issues before the Supreme Court under its rules, did not deprive the High Court of the jurisdiction vested by Article 165(3) (d). Accordingly, we are not persuaded that the High Court committed any error or assumed a jurisdiction that it did not have.”
43. On violation of Petitioner’s constitutional right to dignity and privacy, Counsel for the Petitioner restated the Petitioner’s averments and facts of the case and submitted that the Petitioner’s rights had indeed been violated by the Respondents. Counsel pointed out that the Petitioner was threatened and feared for his life and actually reported the matter to the police- vide OB 186/29/5/2023 but no action was taken against the Respondents.
44. Counsel argued that the 5 th and 6 th Respondents accessed the information on his phone and produced the same without his consent. Counsel added that the Respondents had also retrieved information relating to his family as well as his private affairs, which was reported to the 1 st Respondent.
45. The Petitioner thus argued that the Respondents’ actions are contrary to Article 31(c) of the Constitution as read with Section 25 and 26 of the Data Protection Act. Reliance was placed on JWI & Another vs Standard Group Limited & Another [2015] eKLR where it was held that:
“The right to privacy consists essentially the right of one to live one's own life with minimum interference. It concerns private family and home· life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disbursements of information given or received by the individual confidentiality."
46. Additional reliance was placed on Wanjiru v Machakos University [2022] KEHC 10599 (KLR) .
47. Counsel further contended that the decision that was made by the 1 st Respondent’s Committee was unfair, unlawful and unprocedural as it relied on the illegally obtained evidence. Counsel alleged that the Disciplinary Committee was also hostile to the Petitioner during the proceedings. Counsel submitted that no witness statements were issued to support the case and neither was he issued with the investigation report. Counsel stressed that these aspects violated Article 47 (1) & (2) and 50(4) of the Constitution. Further reliance was placed on Gakanongo Sacco v National Transport and Safety Authority [2019] eKLR where it was held that:
“If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure for essential principles of justice. The decision must be declared as no decision.”
48. Counsel as well added that the Respondents actions had violated the Petitioner’s right to dignity under Article 28 of the Constitution. Reliance was placed in Maina Vs Talent Quest Africa [2024] KEHC6151 (KLR) where it was held that:
“The right to human dignity is the foundation of all other right and together with the right to life, forms the basis for the enjoyment of all other rights… put differently thereof, if a person enjoys the other rights in the bill of rights, the right of human dignity will automatically be promoted and protected and it will never be violated if the others rights are respected."
49. More reliance was placed on Ngugi vs County Government of Nakuru & Another [2023] KEHC 22624(KLR) .
50. In light of the foregoing, Counsel relying in Article 23 of the Constitution submitted that the Petitioner was entitled to the reliefs sought. In regard to the award of damages, Counsel submitted that an award of Kshs. 2,000,000 for the unlawful use of information obtained illegally by the 1 st Respondent. Further, an award of Ksh.800,000 to compensate the Petitioner for breach of his rights under Articles 28,31, 47 and 50(4) of the Constitution.
51. To buttress this point reliance was placed in Mutuku Ndambuki Matingi vs Rafiki Microfinance Bank Limited [2021] eKLR where the Court awarded the Petitioner general damages of Ksh.Kshs.2,000,000 for the violation of his rights to dignity and privacy.
52. Comparable reliance was placed in Miguna Vs The Standard Group Limited & 4 others [2017] eKLR, Joel Mutuma Kirimi & Another vs National Hospital Insurance Fund (NHIF) [2020]eKLR and MWK vs AG & 3 others [2017]eKLR .
1 st , 4 th , 5 th , 6 th , 7 th ,8 th and 9 th Respondents’ Submissions
53. These Respondents through their Counsel, Fredrick Collins Omondi filed submissions dated 15 th July 2025 where Counsel outlined the issues for discussion as: whether the Respondents violated the constitutional rights of the Petitioner and whether this Court has jurisdiction to determine whether the proceedings of the Staff Disciplinary Committee regarding the Petitioner are null and void .
54. Counsel on the first issue submitted that the Respondents had not violated the Petitioner’s rights as alleged. Counsel recapped that the Respondents in conducting the investigations did not break into the Petitioner’s office neither obtained the documents, electronic gadgets and mobile phone at gun point as alleged. On the contrary, Counsel noted that no evidence of the gun threat was adduced. Further that no personal belongings of the Petitioners were carted away by the Respondents in the investigations.
55. In addition, reiterating the averments of the Respondents, Counsel noted that the Petitioner was co-operative throughout the investigation and even willingly gave out his mobile phone PIN number for them to access the information. The Petitioner had prior to this been informed about the allegations against him and purpose of the investigations.
56. It is stressed that the information retrieved on the Petitioner’s mobile phone was not confidential as related to examination malpractices. Counsel noted that this information was nonetheless not obtained through coercion, intimidation and threats. Counsel added that personal information relating to his family was not retrieved as alleged. Counsel underscored that while the Petitioner claimed that him and his family were receiving strange calls, this was not proved. Counsel stressed that the Petitioner’s right to dignity was not violated by the Respondents.
57. Furthermore, in the second issue, Counsel submitted that this Court lacks jurisdiction to entertain this matter as the issue of an irregular disciplinary process before the 1 st Respondent’s staff disciplinary Committee, falls within the jurisdiction of the Employment and Labour Relations Court, as it is an employment matter. To buttress this point reliance was placed in United States International University (USIU) -Vs- Attorney General [2012] eKLR where it was held that:
“Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court.”
58. Comparable reliance was placed in Daniel N. Mugendi -Vs- Kenyatta University & 3 Others CACA No. 6/2012 [2013] eKLR .
2 nd Respondent’s Submissions
59. Counsel for the 2 nd Respondent, Dorine Wanjeru filed submissions dated 18 th November 2024 where she outlined the issues for determination as: whether the Court has proper jurisdiction to determine matters under Article 31 (c) and (d) of the Constitution and whether the Petition discloses any cause of action against the 2 nd Respondent .
60. On the first issue, Counsel submitted that the Petitioner violated the doctrine of exhaustion by prematurely filing this Petition, alleging a breach of privacy under Article 31(c) and (d) of the Constitution, despite the 2 nd Respondent having original jurisdiction over such matters. Counsel pointed out that Section 56 of the Act confers original jurisdiction upon the 2 nd Respondent while Section 64 of the Act provides for the right to appeal to the High Court against any administrative action taken by the 2 nd Respondent. Accordingly, Counsel stressed that this Court only has appellate jurisdiction in such disputes.
61. To buttress this point, reliance was placed in Clifford Keya v Jackline Inguitiah, Anna Konuche, Christine Kipsang, Attorney General, The Law Society of Kenya & Independent Electoral and Boundaries Commission; Atieno Aoko, Jane Nyaboke, Julie Soweto & LSK Elections Board (Interested Party) [2022] KEHC 1605 (KLR) where it was held that:
“The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable. The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution. The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.”
62. Further reliance was placed on Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] eKLR .
63. Counsel emphasized that the Petitioner by filing this Petition prematurely undermined the 2 nd Respondent’s original jurisdiction to adjudicate the alleged breach of privacy and denied it an opportunity to exercise its jurisdiction within the stipulated 90 days. This in turn prompted the 2 nd Respondent to invoke Regulation 6(2)(c) of the Data Protection (Complaints Handling and Enforcement) Regulations, 2021, in declining to entertain the complaint.
64. Turning to the second issue, Counsel contended that the 2 nd Respondent is not a party to the substantive issues raised in this Petition, being an employment dispute and hence the Petition fails to disclose any reasonable cause of action against the 2 nd Respondent.
3 rd Respondents’ Submissions
65. Deputy Chief State Counsel, Stephen Terell filed submissions dated 29 th July 2025 and set out the issues for determination as: whether the Petition meets the threshold of a constitutional petition and whether the 3 rd Respondent is a necessary party .
66. Counsel relying in the threshold outlined in Anarita Karimi Njeru (supra) submitted that the Petition does not meet the test of a constitutional petition. In Counsel’s view, apart from citing omnibus provisions of the Constitution, the Petition provides neither particulars of the alleged complaints, nor the manner of alleged infringements, particularly in respect of the 3 rd Respondent.
67. Further to this, the Pe
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1. The Petition dated 4 th September 2023 was amended on 25 th March 2025 and is supported by the Petitioner’s affidavit. The Petitioner alleges that the Respondents, through threats and intimidation by their investigation officers, unlawfully obtained Petitioner’s information and used it in violation of the Petitioner’s constitutional right to dignity and privacy.
2. Accordingly, the Petitioner seeks the following reliefs against the Respondents:
A Declaration that:
i. The actions of the Respondents violate constitutional provisions under Articles 28, 31, 47 and 50(4).
ii. The evidence used by the Respondents to terminate the employment contract of the Petitioners was obtained illegally.
An Order:
iii. Compelling the 1 st Respondent to pay the Petitioner and pay a total of Kshs 2 million as damages for infringement of privacy.
iv. Compelling the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents to jointly pay the Petitioner a total of Kshs 800,000.00 for infringement of his right to privacy.
v. Prohibiting the Respondents from further publication publishing, broadcasting or using the information, data or documents against the Petitioner.
vi. The costs of this Petition.
Petitioner’s Case
3. The Petitioner states that he was employed by the 1 st Respondent as a cleaner in 2004. Subsequently, he was re-designated as an Audio-Visual Officer.
4. He depones that on 14 th January 2023, the 4 th , 5 th , 6 th , 7 th , 8 th and 9 th Respondents came to his office. He avers that the 4 th Respondent drew his gun and pointed it at him while forcefully taking his phone and asking for the PIN number. At the same time, he proceeded to force the Petitioner to sign documents that were in his office to indicate that, they were found in his possession. He avers that the Respondents then went away with his phone and the documents.
5. He depones that he reported the matter to the Central Police Station vide OB No.186 of 29 th May 2023. He also recorded a statement on 5 th June 2023 together with a witness.
6. He depones that due to the delay in processing the matter by the assigned police, citing that the 4 th Respondent was his colleague, the Petitioner decided to escalate the matter to the 3 rd Respondent. He alleges that despite the promise to follow up on the matter and have the 4 th Respondent write his statement, the 3 rd Respondent also went silent.
7. He claims that the 4 th Respondent later told him that 5 th and 6 th Respondent being ICT officers accessed his phone and procured information that was shared with the 1 st Respondent. Equally, the 7 th Respondent, the 1 st Respondent’s ICT officer, also accessed his email messages, WhatsApp, photos, messages, and Mpesa messages and made copies of the same.
8. He adds that the Respondents also deleted some of his private photos, videos and emails, which caused trouble for his family and spouse. He notes that this information was extracted by the Respondents without his consent and without a warrant.
9. Furthermore, he depones that the 1 st Respondent suspended him on 1 st March 2023 which was extended a further 30 days vide a letter dated 29 th March 2023. He was subsequently summoned to the Staff Disciplinary meeting on 17 th May 2023 and charged with various counts of gross misconduct committed during the course of his employment. He informs that the 1 st Respondent only gave him the information that was in the Preliminary Report but did not share the final evidence relied upon by the Staff Disciplinary Committee.
10. He notifies that his request to be issued these documents was futile. He notes that he protested the decision of the Committee in his letter, dubbing it biased, procedurally flawed and full of illegalities.
11. According to him, the 1 st Respondent relied on the illegally obtained information to terminate his employment, 9 months before its expiry. As a result, he argues that the 1 st Respondent should pay him Ksh.441,342 for the 9 months being a total of his monthly salary of Ksh.49,038.
12. He states that his family has received strange calls, emails, messages since the Respondents illegally accessed his phone. He stresses that his family has suffered anguish, ridicule and torment as a result of the Respondents actions and fears for their life. The Petitioner depones that despite his complaint to the 2 nd Respondent, no action has been taken and neither has he received any communication from the 2 nd Respondent.
13. On this basis, he argues that the Respondents actions of accessing his photos, messages, videos, emails, WhatsApp messages and Mpesa messages without his consent are in violation of his right to privacy and dignity as envisaged under Articles 28 and 31 of the Constitution.
1 st and 8 th Respondents’ Case
14. The 8 th Respondent, the 1 st Respondent’s Director ICT filed a Replying Affidavit sworn on 23 rd May 2025.
15. He deponed that on 12 th January 2023, the then Vice Chancellor, Prof. Stephen K. Gitahi convened a meeting and disclosed that he had received whistleblower information on examination fraud and malpractices, committed by the Petitioner, who was their staff member. In attendance was Director Security, the 4 th Respondent, Ag. Director Audit, Kenneth Gitau and himself.
16. He explains that the whistleblower stated that the Petitioner had colluded with students to get examination leakage, aid in examination impersonation, change examination marks in the system, among other examination malpractices. As a result, the Vice Chancellor directed that the matter be investigated.
17. He depones that the 3 commenced investigations the following day as soon as the Petitioner arrived in his office. They informed the Petitioner of the allegations against him and that they were required to investigate the matter using the internal administrative process. Following his consent, they proceeded to search his table, drawers, computer and related accessories. They further took an inventory of all the stationery related to examinations in the Petitioner’s possession.
18. Further to this, they engaged the ICT staff and security experts, since among the allegations was the Petitioner was altering examination results on the management information system used for examinations referred to as SMIS . These officers were the 5 th , 6 th and 9 th Respondents. He avers that the Petitioner was directed to surrender his phone to the 7 th Respondent of the Security Department, which he did voluntarily . The device was then handed over to the 5 th , 6 th and 9 th Respondents when they arrived in the office, for the purposes of retrieving information deemed relevant in the matter. He informs that this was done in line with the procedure and guidelines adopted by ICT to gather and preserve evidence. He points out that throughout the Petitioner was cooperative and assisted where required, including giving out his PIN number to enable access to his phone.
19. He states that once the ICT analysis of the device was done, a report was issued and submitted to the 4 th Respondent and the acting Director of Internal Audit, to compile an investigation report. Once all the forensic evidence was gathered and a report made, the same was submitted to the Vice Chancellor. He avers that the investigations revealed that the Petitioner had indeed been involved in examination malpractices as claimed by the whistleblower.
20. Considering this, a disciplinary committee was constituted to conduct the disciplinary proceedings against him. The Committee heard the matter and affirmed that he was guilty of the allegations made against him. He even claims that the Petitioner admitted to the allegations of examination related papers that were procured from his office.
21. He underscores that at no point during the process did the Petitioner challenge the manner in which the information was procured and utilized as highlighted in this Petition. The Petitioner only raised the same once the disciplinary proceedings were finalized against him on 26 th May 2023. As such, he deems this Petition as an afterthought.
22. That said, he emphasizes that staff records on disciplinary issues are confidential and only handled by authorized and vetted staff members who maintain reasonable care as they handle the information. On this premise, he affirms that no information concerning the Petitioner’s case was publicly shared or is available, to cause a breach of privacy as alleged.
2 nd Respondent’s Case
23. Opposing the Petition, the 2 nd Respondent filed a Replying Affidavit through its Deputy Data Commissioner, Oscar Otieno sworn on 7 th August 2024.
24. He depones that the Petitioner filed a complaint with the 2 nd Respondent on 31 st August 2023.He states that the 2 nd Respondent is required to investigate complaints within 90 days as provided under Section 56(5) of the Data Protection Act.
25. He states that the 2 nd Respondent conducted a Preliminary Investigation in accordance with Section 5(2) of the Data Protection (Complaints Handling and Enforcement) Regulations. It established that the Petitioner filed the instant Petition 4 days after lodging his complaint. In light of this, the 2 nd Respondent declined the complaint by dint of Regulation 6(2) (c) of the Regulations, in deference to the hierarchy of courts.
26. He underscores that the matter herein revolves around an employment dispute to which the 2 nd Respondent is not a party. As such, he argues that the Petition does not disclose any reasonable cause of action against the 2 nd Respondent.
3 rd Respondent’s Case
27. The 3 rd Respondent in opposition filed Grounds of Opposition dated 16 th June 2025 on the basis that:
i. This Petition offends the doctrine of Constitutional avoidance as enunciated by this Court in Apollo Mboya vs The Attorney General and National Employment Authority Nairobi Constitutional Petition Number E335 of 2023(unreported).
ii. The statutory duty upon the 3 rd Respondent pursuant to Section 24(e) of the National Police Service Act; investigation of crimes, however, Article 245(4) of the Constitution provides that the Cabinet secretary responsible for police services may lawfully give a direction to the Inspector-General with respect to any matter of policy for the National Police Service, but no person may give a direction to the Inspector General with respect to— (a) the investigation of any particular offence or offences; (b) the enforcement of the law against any particular person or persons; or (c) the employment, assignment, promotion, suspension or dismissal of any member of the National Police Service.
iii. The Constitution provides that only the Director of Public Prosecution pursuant to Article 157(4) of the Constitution to (4) shall have power to direct the Inspector General of the National Police Service to investigate any information or allegation of criminal conduct and the Inspector-General shall comply with any such direction.
iv. In response to paragraphs 29, 30, 31 and 32 this of the Amended Petition, the 3 rd Respondent states that the Amended Petition violates the doctrine of exhaustion as the Petitioner ought to have filed a complaint with the Independent Police Oversight Authority who Pursuant to Section 5(a) as read with section 6(a) of the Independent Police Oversight Authority Act Cap 86 Laws of Kenya, have the power to investigate any complaints related to disciplinary or criminal offences committed by any member of the Service, whether on its own motion or on receipt of a complaint, and make recommendations to the relevant authorities, including recommendations for prosecution, compensation, internal disciplinary action or any other appropriate relief, and shall make public the response received to these recommendations.
v. The 3 rd Respondent though not privy to the contents of paragraphs 33 to 39 of the Amended Petition, the Petitioner has not shown that he has exhausted the elaborate complaints mechanisms provided for pursuant to Section 56 t0 58 of the Data Protection Act Cap 411C.
vi. In response to paragraph 51 of the Amended Petition, the Petitioner has not brought any evidence to support the claims thereat.
vii. There also no orders sought as against the 3 rd Respondent or sought to be enforced by the 3 rd Respondent making him non-suited.
viii. This Amended Petition therefore does not meet the test of a constitutional petition laid down in the case of Anarita Karimi Njeru v Republic (No.1) [1979] KLR 154 and emphasized in the case of Mumo Matemu v Trusted Society of Human Rights alliance [2014] eKLR , and on that ground alone, we urge that this Petition should fail. That apart from citing omnibus provisions of the Constitution, the Petition has provided neither particulars of the alleged complaints, nor the manner of alleged infringements, particularly in respect of the 1 st and 2 nd Respondents.
ix. This Petition is an abuse of the Court Process and ought to be dismissed as against the Respondents.
5 th Respondent’s Case
28. The 5 th Respondent filed his Replying Affidavit sworn on 23 rd May 2025 wherein he depones that they went to the Petitioner’s office on 13 th January 2023, alongside the 6 th and 9 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand.
29. He depones that the 8 th Respondent instructed them to check the desktop computer and Petitioner’s phone for any evidence on the allegations of engaging in examination malpractice. The 7 th Respondent who was holding onto the phone gave it to them to investigate. He notes that the Petitioner issued them the PIN number to access his phone and wrote down his PIN number on a paper for ease of access, without any reservations. He informs that the security officers left the office and left them investigating the devices until the close of the day.
30. He notes that the 8 th Respondent on 15 th January 2023 which was a Sunday, directed him to continue the investigations the following day. In like fashion, the 7 th Respondent issued him the Petitioner’s phone where he continued to retrieve evidence on 16 th January 2023. Upon conclusion of the investigation, he submitted the phone to the 7 th Respondent and prepared a Report. He sent the Report to the 8 th Respondent and also the 6 th and 9 th Respondents via email on the same day.
31. He informs that they also investigated the Petitioner’s colleague one, Peter Juma who he shared the office with, however did not find any evidence against him.
6 th Respondent’s Case
32. Similarly, the 6 th Respondent filed his Replying Affidavit on 26 th May 2025. He depones that the on 13 th January 2023, he went to the Petitioner’s office with the 5 th and 9 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand. They were instructed to check the Petitioner’s desktop computer and phone for any evidence on the allegations of engaging in examination malpractice.
33. He depones that the 7 th Respondent gave them the Petitioner’s phone. He notes that the Petitioner voluntarily issued them the PIN number to access his phone and wrote it down for them.
34. He depones that upon checking the desktop and phone, they documented the evidence they found. He underscores that a similar investigation of the Petitioner’s colleague one, Peter Juma who he shared the office with, did not avail any evidence against him. He avers that the acting Director of Internal Audit, Kenneth Gitau also joined them and took an inventory of all the documents that were present in the Petitioner’s office.
35. He states that he left the office at around 2pm where he left the 5 th Respondent continuing the investigations. Subsequently, the 5 th Respondent on 16 th January 2023 shared with him the Preliminary Report of the investigations.
9 th Respondent’s Case
36. In the Replying Affidavit sworn on 12 th June 2025, the 9 th Respondent depones that they went to the Petitioner’s office on 13 th January 2023, alongside the 5 th and 6 th Respondents, where they were briefed by the 8 th Respondent on the matter at hand.
37. He depones that the 8 th Respondent instructed them to check the desktop computer which is owned by the 1 st Respondent, for any evidence on the allegations of engaging in examination malpractice, in accordance with the ICT Guidelines for electronic evidence gathering. In addition, the 7 th Respondent gave them the Petitioner’s phone to investigate. He notes that the Petitioner issued them the PIN number to access his phone without resisting. He avers that the Petitioner even went ahead and wrote his PIN number on a paper and handed it to them for ease of access into the phone.
38. He details that their investigation involved review of the access logs of the computers owned by the institution, the university email communications on the desktop computer. He avers that the acting Director of Internal Audit, Kenneth Gitau took an inventory of all the documents that were present in the Petitioner’s office.
39. He informs that they also investigated the Petitioner’s colleague one, Peter Juma who he shared the office with, however they did not find any evidence against him. He points out that when they arrived at the office, the 4 th Respondent was not in the office and neither did he witness the alleged gun use to coerce the Petitioner.
40. Following the investigations, he states that he received the Report on 16 th January 2023 from the 5 th Respondent.
Petitioner’s Submissions
41. The Petitioner through Orego and Odhiambo Advocates filed two sets of submissions dated 29 th May 2025 and 17 th July 2025. Counsel identified the issues for determination as: whether this Court has jurisdiction to entertain the matter , whether the actions of the Respondents herein amounted to gross violation of the Petitioner's constitutional rights and whether the Petitioner is entitled to the relief sought .
42. On jurisdiction, it was submitted on behalf of the Petitioner that this Court has jurisdiction to hear and determine the Petition by virtue of Article 165(3)(b) and (d) of the Constitution as the matter involves violation of the Petitioner’s rights by the Respondents. Counsel contended that contrary to the Respondents assertion, the Petition is not about employment. Reliance was placed in Independent Electoral and Boundaries Commission v Maina Kiai and 5 others [2017] KECA 477 (KLR) where it was held that:
“In view of the foregoing, we conclude that the High Court had jurisdiction to determine the constitutionality of the impugned provisions of the Elections Act and the regulations made thereunder, and the fact that the 1 st , 2 nd and 3 rd respondents could arguably have raised the issues before the Supreme Court under its rules, did not deprive the High Court of the jurisdiction vested by Article 165(3) (d). Accordingly, we are not persuaded that the High Court committed any error or assumed a jurisdiction that it did not have.”
43. On violation of Petitioner’s constitutional right to dignity and privacy, Counsel for the Petitioner restated the Petitioner’s averments and facts of the case and submitted that the Petitioner’s rights had indeed been violated by the Respondents. Counsel pointed out that the Petitioner was threatened and feared for his life and actually reported the matter to the police- vide OB 186/29/5/2023 but no action was taken against the Respondents.
44. Counsel argued that the 5 th and 6 th Respondents accessed the information on his phone and produced the same without his consent. Counsel added that the Respondents had also retrieved information relating to his family as well as his private affairs, which was reported to the 1 st Respondent.
45. The Petitioner thus argued that the Respondents’ actions are contrary to Article 31(c) of the Constitution as read with Section 25 and 26 of the Data Protection Act. Reliance was placed on JWI & Another vs Standard Group Limited & Another [2015] eKLR where it was held that:
“The right to privacy consists essentially the right of one to live one's own life with minimum interference. It concerns private family and home· life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disbursements of information given or received by the individual confidentiality."
46. Additional reliance was placed on Wanjiru v Machakos University [2022] KEHC 10599 (KLR) .
47. Counsel further contended that the decision that was made by the 1 st Respondent’s Committee was unfair, unlawful and unprocedural as it relied on the illegally obtained evidence. Counsel alleged that the Disciplinary Committee was also hostile to the Petitioner during the proceedings. Counsel submitted that no witness statements were issued to support the case and neither was he issued with the investigation report. Counsel stressed that these aspects violated Article 47 (1) & (2) and 50(4) of the Constitution. Further reliance was placed on Gakanongo Sacco v National Transport and Safety Authority [2019] eKLR where it was held that:
“If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure for essential principles of justice. The decision must be declared as no decision.”
48. Counsel as well added that the Respondents actions had violated the Petitioner’s right to dignity under Article 28 of the Constitution. Reliance was placed in Maina Vs Talent Quest Africa [2024] KEHC6151 (KLR) where it was held that:
“The right to human dignity is the foundation of all other right and together with the right to life, forms the basis for the enjoyment of all other rights… put differently thereof, if a person enjoys the other rights in the bill of rights, the right of human dignity will automatically be promoted and protected and it will never be violated if the others rights are respected."
49. More reliance was placed on Ngugi vs County Government of Nakuru & Another [2023] KEHC 22624(KLR) .
50. In light of the foregoing, Counsel relying in Article 23 of the Constitution submitted that the Petitioner was entitled to the reliefs sought. In regard to the award of damages, Counsel submitted that an award of Kshs. 2,000,000 for the unlawful use of information obtained illegally by the 1 st Respondent. Further, an award of Ksh.800,000 to compensate the Petitioner for breach of his rights under Articles 28,31, 47 and 50(4) of the Constitution.
51. To buttress this point reliance was placed in Mutuku Ndambuki Matingi vs Rafiki Microfinance Bank Limited [2021] eKLR where the Court awarded the Petitioner general damages of Ksh.Kshs.2,000,000 for the violation of his rights to dignity and privacy.
52. Comparable reliance was placed in Miguna Vs The Standard Group Limited & 4 others [2017] eKLR, Joel Mutuma Kirimi & Another vs National Hospital Insurance Fund (NHIF) [2020]eKLR and MWK vs AG & 3 others [2017]eKLR .
1 st , 4 th , 5 th , 6 th , 7 th ,8 th and 9 th Respondents’ Submissions
53. These Respondents through their Counsel, Fredrick Collins Omondi filed submissions dated 15 th July 2025 where Counsel outlined the issues for discussion as: whether the Respondents violated the constitutional rights of the Petitioner and whether this Court has jurisdiction to determine whether the proceedings of the Staff Disciplinary Committee regarding the Petitioner are null and void .
54. Counsel on the first issue submitted that the Respondents had not violated the Petitioner’s rights as alleged. Counsel recapped that the Respondents in conducting the investigations did not break into the Petitioner’s office neither obtained the documents, electronic gadgets and mobile phone at gun point as alleged. On the contrary, Counsel noted that no evidence of the gun threat was adduced. Further that no personal belongings of the Petitioners were carted away by the Respondents in the investigations.
55. In addition, reiterating the averments of the Respondents, Counsel noted that the Petitioner was co-operative throughout the investigation and even willingly gave out his mobile phone PIN number for them to access the information. The Petitioner had prior to this been informed about the allegations against him and purpose of the investigations.
56. It is stressed that the information retrieved on the Petitioner’s mobile phone was not confidential as related to examination malpractices. Counsel noted that this information was nonetheless not obtained through coercion, intimidation and threats. Counsel added that personal information relating to his family was not retrieved as alleged. Counsel underscored that while the Petitioner claimed that him and his family were receiving strange calls, this was not proved. Counsel stressed that the Petitioner’s right to dignity was not violated by the Respondents.
57. Furthermore, in the second issue, Counsel submitted that this Court lacks jurisdiction to entertain this matter as the issue of an irregular disciplinary process before the 1 st Respondent’s staff disciplinary Committee, falls within the jurisdiction of the Employment and Labour Relations Court, as it is an employment matter. To buttress this point reliance was placed in United States International University (USIU) -Vs- Attorney General [2012] eKLR where it was held that:
“Labour and employment rights are part of the Bill of Rights and are protected under Article 41 which is within the province of the Industrial Court. To exclude the jurisdiction of the Industrial Court from dealing with any other rights and fundamental freedoms howsoever arising from the relationships defined in section 12 of the Industrial Court Act, 2011 or to interpret the Constitution would lead to a situation where there is parallel jurisdiction between the High Court and the Industrial Court.”
58. Comparable reliance was placed in Daniel N. Mugendi -Vs- Kenyatta University & 3 Others CACA No. 6/2012 [2013] eKLR .
2 nd Respondent’s Submissions
59. Counsel for the 2 nd Respondent, Dorine Wanjeru filed submissions dated 18 th November 2024 where she outlined the issues for determination as: whether the Court has proper jurisdiction to determine matters under Article 31 (c) and (d) of the Constitution and whether the Petition discloses any cause of action against the 2 nd Respondent .
60. On the first issue, Counsel submitted that the Petitioner violated the doctrine of exhaustion by prematurely filing this Petition, alleging a breach of privacy under Article 31(c) and (d) of the Constitution, despite the 2 nd Respondent having original jurisdiction over such matters. Counsel pointed out that Section 56 of the Act confers original jurisdiction upon the 2 nd Respondent while Section 64 of the Act provides for the right to appeal to the High Court against any administrative action taken by the 2 nd Respondent. Accordingly, Counsel stressed that this Court only has appellate jurisdiction in such disputes.
61. To buttress this point, reliance was placed in Clifford Keya v Jackline Inguitiah, Anna Konuche, Christine Kipsang, Attorney General, The Law Society of Kenya & Independent Electoral and Boundaries Commission; Atieno Aoko, Jane Nyaboke, Julie Soweto & LSK Elections Board (Interested Party) [2022] KEHC 1605 (KLR) where it was held that:
“The doctrine of exhaustion is applicable to constitutional Petitions. If successfully raised, it is a complete bar and a Court will not move an inch ahead. There are, however, instances where the doctrine will be inapplicable. The doctrine of exhaustion traces its origin in Article 159(2)(c) of the Constitution which recognizes and entrenches the use of alternative mechanisms of dispute resolution. The doctrine is further entrenched in Section 9 of the Fair Administrative Action Act, 2015 which provision forbids the High Court from assuming jurisdiction in matters where a party does not exhaust internal remedies except where exceptional circumstances for exemption are proved to exist.”
62. Further reliance was placed on Samuel Kamau Macharia & Another v. Kenya Commercial Bank & 2 Others [2012] eKLR .
63. Counsel emphasized that the Petitioner by filing this Petition prematurely undermined the 2 nd Respondent’s original jurisdiction to adjudicate the alleged breach of privacy and denied it an opportunity to exercise its jurisdiction within the stipulated 90 days. This in turn prompted the 2 nd Respondent to invoke Regulation 6(2)(c) of the Data Protection (Complaints Handling and Enforcement) Regulations, 2021, in declining to entertain the complaint.
64. Turning to the second issue, Counsel contended that the 2 nd Respondent is not a party to the substantive issues raised in this Petition, being an employment dispute and hence the Petition fails to disclose any reasonable cause of action against the 2 nd Respondent.
3 rd Respondents’ Submissions
65. Deputy Chief State Counsel, Stephen Terell filed submissions dated 29 th July 2025 and set out the issues for determination as: whether the Petition meets the threshold of a constitutional petition and whether the 3 rd Respondent is a necessary party .
66. Counsel relying in the threshold outlined in Anarita Karimi Njeru (supra) submitted that the Petition does not meet the test of a constitutional petition. In Counsel’s view, apart from citing omnibus provisions of the Constitution, the Petition provides neither particulars of the alleged complaints, nor the manner of alleged infringements, particularly in respect of the 3 rd Respondent.
67. Further to this, the Pe
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