Manga v Faras Cabs Kenya Ltd t/a Faras & 4 others (Constitutional Petition E245 of 2025) [2026] KEHC 11130 (KLR) (Constitutional and Human Rights) (23 July 2026) (Ruling)

Manga v Faras Cabs Kenya Ltd t/a Faras & 4 others (Constitutional Petition E245 of 2025) [2026] KEHC 11130 (KLR) (Constitutional and Human Rights) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11130 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Constitutional Petition E245 of 2025 PM Nyaundi, J July 23, 2026 Between Daniel Onwonga Manga Petitioner and Faras Cabs Kenya Limited T/A Faras Respondent and Meta Platform, Inc 1st Interested Party X Corp 2nd Interested Party Byte Dnce Ltd 3rd Interested Party Google LLC 4th Interested Party Ruling Introduction 1.The Applicant’s Motion dated 29th April 2025 seeks mandatory injunctive orders arising from the Respondent’s publication of two edited videos portraying him as praising and endorsing the Faras platform. It is presented under Order 4, Order 5, Rules 21, 22B, 40, 51 and Section 106B of the Evidence Act. The application is supported by the affidavit of Daniel Onwonga Manga, the Petitioner, sworn on the same date. 2.He prays for orders compelling the Respondent to capture, preserve and produce complete post‑level metrics for each impugned post, including impressions, reach, demographic distribution, engagement data, click‑throughs, timestamps and edit histories, within 24 hours of service, and thereafter to file a sworn affidavit exhibiting certified copies of those metrics duly authenticated under section 106B of the Evidence Act. The supporting affidavit explains that the videos were extracted from a town‑hall meeting held on 13 March 2025, during which the Applicant offered measured criticism of the Respondent’s application. The Respondent allegedly spliced, clipped and distorted his remarks, secretly recorded him, and disseminated the manipulated videos across Facebook, Instagram, TikTok, YouTube, LinkedIn and X. The Applicant avers that only the Respondent and the Interested Parties possess the backend analytics necessary to establish the scale, geography and audience composition of the publication. 3.The Applicant further seeks leave to serve the 1st to 4th Interested Parties—Meta Platforms Inc, X Corp, ByteDance Ltd and Google LLC, outside jurisdiction via electronic mail under Order 5 Rule 22B, and an order that should the Respondent fail to comply with the preservation and production obligations, the Interested Parties be compelled to supply the same certified metrics. He depones that the platforms’ privacy policies prohibit disclosure of post‑level analytics absent a court order, and that deletion of the impugned posts would irretrievably destroy crucial metadata, impressions, reach statistics and engagement logs. The affidavit details the reputational injury suffered, including allegations within professional WhatsApp groups that he is a “traitor” or “sleeper agent,” and asserts that the unauthorized commercial exploitation of his image and voice has undermined his economic interests and compromised his ability to advocate for drivers. He states that the full extent of harm cannot be appreciated without access to dissemination metrics, engagement data, demographic information and click‑through statistics. 4.The Applicant contends that the orders sought are necessary to prevent the petition from being rendered nugatory, to preserve evidence exclusively held by the Respondent and the social media platforms, and to safeguard his constitutional rights to dignity, privacy, property, fair trial and intellectual property. He asserts that the manipulated videos were disseminated to a Kenyan audience, and that only the requested metrics can establish jurisdiction, malice, extent of publication and reputational harm. He therefore prays for interim preservation orders, production of certified analytics, and eventual deletion of the offending videos upon compliance. The Applicant’s case emphasises that the integrity of the proceedings depends upon timely preservation of digital evidence, and that without such intervention, irreversible prejudice to his rights and interests would inevitably result. 5.The Respondent’s Preliminary Objection dated 12th May 2025 contends, as a pure point of law, that this Court lacks original jurisdiction to entertain the Petition and the accompanying Application, the dispute being one that properly falls within the statutory framework of the Data Protection Act, 2019. The Respondent argues that the gravamen of the Petition, namely, the alleged recording of the Petitioner without consent and the subsequent use of the videos for deceptive commercial advertising, constitutes a data‑processing complaint squarely within the mandate of the Data Protection Commissioner under sections 3, 8(1)(f), 56 and 64 of the Act. 6.It is contended that the Statute has already provided an alternative mechanism for resolving such disputes, and that the doctrine of exhaustion precludes the Petitioner from invoking constitutional jurisdiction before first lodging a complaint with the Data Commissioner, whose determinations are appealable to this Court at the appellate stage. The Respondent further asserts that even if the allegations merited litigation, the claim locates in tort and does not meet the threshold for a constitutional petition alleging violation of the Bill of Rights. On this basis, the Respondent prays that the Petition and Application dated 29th April 2025, together with all attendant proceedings, be struck out with costs. 7.Both parties filed submissions in compliance with court directions. Summary of the Applicant’s Submissions 8.The Applicant filed two sets of submissions, primary submissions dated 24th July 2025 and rejoinder submissions dated 30th January 2026. Relying on Dande & 3 others v Inspector General, National Police Service & 5 others [2023] KESC 40 (KLR) and Tsichlas v Touch Line Media (Pty) Ltd [2004] 2 All SA 112 (W), the Applicant argues that Article 35(1)(b) and Article 50(2)(j) entitle him to the information sought, and that demographic data is essential to establish publication within Kenya. 9.The Applicant further submits that this Court possesses jurisdiction and remedial competence under Articles 23(3) and 165(3)(a) of the Constitution, and under Section 22 of the Civil Procedure Act, to grant preservation orders, compel production of evidence, and fashion appropriate relief. He relies on MituBell Welfare Society v Kenya Airports Authority & 2 others; ISLA (Amicus Curiae) [2021] KESC 34 (KLR) to affirm the Court’s power to issue interim reliefs in protection of the Bill of Rights. He argues that the Respondent’s deletion of the impugned posts after preservation orders were issued on 26th May 2025 constitutes deliberate destruction of evidence, inviting adverse inference under Nesco Services Limited v CM Construction [EA] Limited [2021] KEHC 12810 (KLR). The Applicant maintains that the Respondent cannot defeat a subsisting court order through unilateral deletion and subsequently plead impossibility, and that the Interested Parties, being custodians of platform level metrics, can supply the required data once properly served under Order 5 Rule 22B. 10.On the Respondent’s Preliminary Objection dated 12th May 2025, the Applicant submits that the doctrines of constitutional avoidance and exhaustion do not apply. He distinguishes Phoro v Eldoret Technical Training Institute [2024] KEHC 10974 (KLR) and Kirima v Solar Panda Company Limited [2024] KEHC 11499 (KLR), arguing that those cases involved grievances exclusively grounded in privacy, fully remediable before the ODPC. In contrast, the present Petition alleges a constellation of constitutional violations far beyond data processing. He relies on Communications Commission of Kenya v Royal Media Services Ltd [2014] eKLR, Nicholus v Attorney General & 7 others [2023] KESC 113 (KLR), Kipkoti v Deputy and Acting Governor of Nairobi City County Government [2023] KEHC 22325 (KLR), and Mathenge v Julie Njuhi Muiruri [2024] KEHC 6970 (KLR) to demonstrate that the ODPC lacks jurisdiction to interpret the Constitution, issue declaratory orders, adjudicate violations beyond unlawful processing, or grant comprehensive relief under Article 23(3). The Applicant therefore submits that the ODPC route is wholly inadequate; that exhaustion does not arise, and that this Court must proceed to hear the Petition and grant the preservation orders sought. Summary of the Respondent’s Submissions 11.The Respondent’s submissions dated 1st July 2025, filed in support of the Preliminary Objection of 12th May 2025, contend that the Applicant’s Motion of 29th April 2025 is fundamentally misconceived as the dispute falls squarely within the statutory remit of the Data Protection Act, 2019. The Respondent argues that the gravamen of the Applicant’s claim arises from alleged collection, processing and publication of personal data without consent, thereby implicating the exclusive jurisdiction of the Office of the Data Protection Commissioner (ODPC). Relying on Mukisa Biscuit Manufacturing Ltd v West End Distributors [1969] EA 696 and John Musakali v Speaker, County of Bungoma (2015) eKLR, the Respondent submits that the Preliminary Objection raises a pure point of law capable of disposing of the matter. The Respondent further invokes the celebrated dictum in The Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) 1 KLR 1, emphasising that jurisdiction is everything and that the High Court must down its tools where jurisdiction is absent. 12.The Respondent maintains that the Applicant has not exhausted the statutory dispute‑resolution mechanism under Section 56(1) of the Data Protection Act, which requires aggrieved data subjects to lodge complaints with the Data Commissioner. It is submitted that all alleged violations, including dignity, expression, association and property, flow from the single privacy complaint and are fully remediable before the ODPC, whose decisions are appealable to the High Court under Section 64. The Respondent relies heavily on Phoro v Eldoret Technical Training Institute [2024] KEHC 10974 (KLR) and Kirima v Solar Panda Company Ltd [2024] KEHC 11499 (KLR), where the High Court struck out similar petitions on grounds that the Data Protection Act provides an adequate and efficacious remedy. The Respondent also cites William Odhiambo Ramogi & 3 others v AG & 4 others; Muslim Human Rights & 2 others [2020] eKLR, and Speaker of National Assembly v Karume [1992] KLR 21, to reinforce the principle that where a statute prescribes a clear procedure for redress, that procedure must be strictly followed. 13.On the merits of the Applicant’s Motion, the Respondent submits that the orders sought are incapable of enforcement because the impugned posts were deleted before the Petition was filed, rendering preservation and production orders futile. Citing Kakoka v Ong’udi & 2 others [2023] KEHC 4046 (KLR) and Eric V.J. Makokha & 4 others v Lawrence Sagini & 2 others [1994] eKLR, the Respondent argues that equity does not act in vain and that courts cannot issue orders that are impossible to comply with. The Respondent further contends that the Applicant has produced no evidence of commercial exploitation under Section 37 of the Data Protection Act and relies on Regulation 14(1) of the Data Protection (General) Regulations 2021 to define commercial use. The Respondent invokes the equitable maxim that “equity aids the vigilant, not the indolent,” citing In re Estate of Kiptare Arap Tele (Deceased) [2025] KEHC 3954 (KLR), Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd [2014] eKLR, and The Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221, arguing that the Applicant acquiesced to being recorded and raised no objection during the meeting. 14.Finally, the Respondent submits that the Petition improperly constitutionalises a private grievance between individuals, relying on Mwangi & another v Naivasha County Hotel t/a Sawela Lodges [2022] KEHC 10975 (KLR) and Uhuru Muigai Kenyatta (supra) for the principle that not every societal ill attracts constitutional sanction. The Respondent argues that the issues complained of are civil in nature and fall within the ODPC’s mandate. It is therefore urged that this Court recognise the statutory scheme under the Data Protection Act, decline jurisdiction on account of the doctrine of exhaustion, and dismiss both the Petition and the Application dated 29th April 2025 with costs. The Respondent concludes that the Preliminary Objection dated 12th May 2025 is merited and should be upheld in full. Analysis And Determination 15.Having considered the pleadings and the rival submissions, I discern that the constitutional issues for determination are-1.Is the preliminary objection, framed, competent?2.Should the preliminary objection be upheld?3.Whether arising from (1) or (2) above, the applicant is entitled to the injunctive relief sought4.Finally, what are the consequential orders? Is the Preliminary Objection as framed competent? 16.The legal threshold for a preliminary objection is well settled. The Supreme Court in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR) cited the precedent- setting decision on Preliminary Objections; Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, where the Court held as follows:a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 17.Further the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR pronounced on the efficacy of preliminary objections as follows:…The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits. 18.The preliminary objection challenges the jurisdiction of this Court. The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR) conclusively stated-[68.]A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law. 19.The preliminary objection as framed is therefore competent as it raises a pure point of law viz whether the Court is vested with jurisdiction to determine the Petition. Should the Preliminary Objection be upheld? 20.The applicant urges that the Petition is hamstrung by the doctrine of exhaustion. The doctrine was soundly articulated by the Court of appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following words:Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures. 21.The doctrine of exhaustion does not operate as a judicial relinquishment of constitutional responsibility. It is, instead, a disciplined expression of constitutional structure, that recognises that Parliament has, in specific domains, vested primary jurisdiction in specialised statutory bodies. When a court defers to such mechanisms, it does not abdicate its role; it honours the architecture of the law. 22.The doctrine of exhaustion, properly applied, respects legislative design while preserving judicial oversight where necessary. Meaning that, when this Court defers initial consideration of a dispute to the Office of the Data Protection Commissioner, it is not closing its doors to the litigant. It is ensuring that the body entrusted with first‑instance competence under the Data Protection Act, 2019 is allowed to discharge its statutory mandate. This approach accords with the decision in Speaker of National Assembly v Karume(Supra) as reinforced by William Odhiambo Ramogi & 3 others v AG & 4 others; Muslim Human Rights & 2 others [2020] eKLR, which emphasised that exhaustion promotes diligence and orderly adjudication. And it is reflected in Phoro v Eldoret Technical Training Institute [2024] KEHC 10974 (KLR) and Kirima v Solar Panda Company Ltd [2024] KEHC 11499 (KLR). 23.As explained in William Odhiambo Ramogi & 3 others v AG & 4 others; Muslim Human Rights & 2 others (Supra) the Court intervenes where the statutory remedy is unavailable, ineffective, or incapable of addressing the full spectrum of alleged violations. As the Supreme Court observed in Nicholus v Attorney General & 7 others [2023] KESC 113 (KLR), exhaustion is not a rigid barrier; it is a principle of judicial restraint that yields where the alternative mechanism is inadequate. 24.A careful and dispassionate examination of the factual record reveals that, notwithstanding the Applicant’s attempt to frame the dispute as a broad constellation of threatened or actual violations of constitutional rights, the core grievance is far narrower and firmly anchored in a single factual transaction. The Petition turns on the allegation that the Respondent recorded the Applicant during a stakeholders’ meeting, edited his remarks, and subsequently published the altered footage on its social media platforms without his consent. The Applicant asserts that this recording was then deployed for commercial advantage. 25.These facts, taken at their highest, describe a dispute arising from the collection, manipulation, and dissemination of personal data. They do not, in their essence, describe a multi‑layered constitutional controversy; they describe conduct that falls squarely within the statutory framework governing data processing under the Data Protection Act, 2019. The Court’s first duty is to identify what the case is, not what a party wishes it to be. And here, the factual matrix unmistakably situates the dispute within a statutory regime that Parliament has deliberately crafted to address precisely this species of grievance. It is therefore not enough for a litigant to cite an array of constitutional provisions and hope that the breadth of citation transforms a statutory dispute into a constitutional one. The pleadings must demonstrate, with clarity and precision, that the alleged violations genuinely implicate constitutional adjudication at first instance. 26.Having reached that conclusion on the facts and the law, this Court must restrain itself and direct the Applicant to the statutory dispute‑resolution mechanism that Parliament has expressly provided. 27.It follows therefore that the 3rd issue frame above viz., whether arising from (a) or (b) above, the applicant is entitled to the injunctive relief sought can only be answered in the negative. What are the Consequential Orders- 28.Having found that the Court lacks jurisdiction on account of the Doctrine of Exhaustion, the following Orders will issue-1.The Petition dated 29th April 2025 is hereby struck out for being premature, having been filed before the exhaustion of the dispute‑resolution mechanism established under the Data Protection Act, 2019.2.Consequently, the Notice of Motion of even date fails in its entirety and is dismissed.3.Each party will bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 23RD JULY 2026. P.M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantMs. Kenaga for PetitionerMs. Aswani holding brief for Kusow for Respondent