Introduction
1. This is an ex parte application brought by the Applicant under Section 22(4) of the Computer Misuse and Cybercrimes Act, 2018 and Sections 118 and 121 of the Criminal Procedure Code seeking orders to investigate a Facebook account and to compel the Respondent to furnish subscriber information and preserve electronic evidence.
2. The application is supported by the affidavit of No. 241435 IP Jacob Kola, an investigating officer attached to the Directorate of Criminal Investigations, Kisii.
Background
3. The Applicant depones that a complaint was lodged at Kisii Central Police Station regarding alleged publication of defamatory and false information through a Facebook account known as Mr. Mokaya Omweri.
4. It is alleged that the said account published content claiming that a government school feeding programme was exposing pupils to cancer and that the County Government of Kisii was undertaking harmful actions against its citizens.
5. The Applicant contends that the said publication is false, malicious, and has caused public alarm and reputational harm.
6. Investigations have so far been unable to identify the person behind the account, necessitating court intervention to obtain subscriber and technical data from the Respondent.
7. The Applicant further avers that there is a real risk that the content may be deleted, thereby leading to loss of crucial electronic evidence.
Issues for Determination
8. The Court is called upon to determine:
a. Whether the application meets the threshold for grant of ex parte orders;
b. Whether sufficient grounds have been laid for issuance of warrants to investigate the Facebook account;
c. Whether the Court should compel the Respondent to produce subscriber information and preserve electronic evidence.
Analysis
9. This application has been brought ex parte. The law permits such applications where giving notice would defeat the purpose of the application, particularly in matters involving preservation of evidence.
10. Section 118 of the Criminal Procedure Code empowers the Court to issue warrants where it is satisfied on oath that there is reasonable suspicion that an offence has been committed and that evidence may be obtained through such warrant.
11. Further, Section 22(4) of the Computer Misuse and Cybercrimes Act allows the Court to authorize access to computer systems and data for purposes of investigations.
12. From the material placed before the Court, it is evident that:
a. A complaint has been formally lodged and recorded;
b. The alleged publication relates to offences known in law, including publication of false information and defamatory material;
c. The identity of the account holder is unknown;
d. The information sought is necessary to identify the suspect and preserve evidence;
e. There is a real risk of deletion or tampering with the impugned content.
13. The Court is satisfied that the threshold for issuance of investigative warrants has been met.
14. The request that the Respondent be compelled to produce subscriber information and issue a certificate under Section 106B(4) of the Evidence Act is also well grounded, as such information constitutes electronic evidence necessary for prosecution.
15. On the issue of proceeding ex parte, the Court is persuaded that notifying the account holder at this stage would prejudice investigations and may lead to destruction of evidence.
Disposition
16. Accordingly, the application is merited and is hereby allowed.
Orders
17. The Court hereby issues the following orders:
i. A warrant is hereby issued authorizing No. 241435 IP Jacob Kola or any other duly authorized officer to investigate the Facebook account known as *“Mr. Mokaya Omweri”* and obtain relevant user data.
ii. The Respondent, Meta Platforms, Inc., is hereby directed to provide:
iii. Linked mobile numbers, IMEI, and geolocation data;
iv. IP addresses and access logs;
v. Device information;
vi. Associated email addresses and account details;
vii. Any other relevant information necessary for investigations.
viii. The Respondent shall preserve the impugned Facebook content and any related data pending completion of investigations
ix. The Respondent shall nominate an authorized person to prepare and issue a certificate under Section 106B(4) of the Evidence Act in respect of all electronic evidence supplied.
x. The Respondent shall not notify the account holder or any third party of these proceedings or the orders issued herein, pending conclusion of investigations.
xi. These orders shall be served upon the Respondent for immediate compliance.
xii.The orders shall remain in force for a period of 90 days.
1. This is an ex parte application brought by the Applicant under Section 22(4) of the Computer Misuse and Cybercrimes Act, 2018 and Sections 118 and 121 of the Criminal Procedure Code seeking orders to investigate a Facebook account and to compel the Respondent to furnish subscriber information and preserve electronic evidence.
2. The application is supported by the affidavit of No. 241435 IP Jacob Kola, an investigating officer attached to the Directorate of Criminal Investigations, Kisii.
Background
3. The Applicant depones that a complaint was lodged at Kisii Central Police Station regarding alleged publication of defamatory and false information through a Facebook account known as Mr. Mokaya Omweri.
4. It is alleged that the said account published content claiming that a government school feeding programme was exposing pupils to cancer and that the County Government of Kisii was undertaking harmful actions against its citizens.
5. The Applicant contends that the said publication is false, malicious, and has caused public alarm and reputational harm.
6. Investigations have so far been unable to identify the person behind the account, necessitating court intervention to obtain subscriber and technical data from the Respondent.
7. The Applicant further avers that there is a real risk that the content may be deleted, thereby leading to loss of crucial electronic evidence.
Issues for Determination
8. The Court is called upon to determine:
a. Whether the application meets the threshold for grant of ex parte orders;
b. Whether sufficient grounds have been laid for issuance of warrants to investigate the Facebook account;
c. Whether the Court should compel the Respondent to produce subscriber information and preserve electronic evidence.
Analysis
9. This application has been brought ex parte. The law permits such applications where giving notice would defeat the purpose of the application, particularly in matters involving preservation of evidence.
10. Section 118 of the Criminal Procedure Code empowers the Court to issue warrants where it is satisfied on oath that there is reasonable suspicion that an offence has been committed and that evidence may be obtained through such warrant.
11. Further, Section 22(4) of the Computer Misuse and Cybercrimes Act allows the Court to authorize access to computer systems and data for purposes of investigations.
12. From the material placed before the Court, it is evident that:
a. A complaint has been formally lodged and recorded;
b. The alleged publication relates to offences known in law, including publication of false information and defamatory material;
c. The identity of the account holder is unknown;
d. The information sought is necessary to identify the suspect and preserve evidence;
e. There is a real risk of deletion or tampering with the impugned content.
13. The Court is satisfied that the threshold for issuance of investigative warrants has been met.
14. The request that the Respondent be compelled to produce subscriber information and issue a certificate under Section 106B(4) of the Evidence Act is also well grounded, as such information constitutes electronic evidence necessary for prosecution.
15. On the issue of proceeding ex parte, the Court is persuaded that notifying the account holder at this stage would prejudice investigations and may lead to destruction of evidence.
Disposition
16. Accordingly, the application is merited and is hereby allowed.
Orders
17. The Court hereby issues the following orders:
i. A warrant is hereby issued authorizing No. 241435 IP Jacob Kola or any other duly authorized officer to investigate the Facebook account known as *“Mr. Mokaya Omweri”* and obtain relevant user data.
ii. The Respondent, Meta Platforms, Inc., is hereby directed to provide:
iii. Linked mobile numbers, IMEI, and geolocation data;
iv. IP addresses and access logs;
v. Device information;
vi. Associated email addresses and account details;
vii. Any other relevant information necessary for investigations.
viii. The Respondent shall preserve the impugned Facebook content and any related data pending completion of investigations
ix. The Respondent shall nominate an authorized person to prepare and issue a certificate under Section 106B(4) of the Evidence Act in respect of all electronic evidence supplied.
x. The Respondent shall not notify the account holder or any third party of these proceedings or the orders issued herein, pending conclusion of investigations.
xi. These orders shall be served upon the Respondent for immediate compliance.
xii.The orders shall remain in force for a period of 90 days.