Mwaniki t/a Millow Closet Kenya v Kimeli (Commercial Case E520 of 2024) [2026] KEHC 12118 (KLR) (Commercial and Tax) (30 July 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCCOMM E520 OF 2024** **MILLICENT WANJA MWANIKI T/A MILLOW CLOSET KENYA………………………………………………………….PLAINTIFF/RESPONDENT** **-VERSUS-** **BRIAN KIMELI ..................................................................... DEFENDANT/APPLICANT** **RULING** **INTRODUCTION AND BACKGROUND** 1. It is by now common knowledge that the simple press of a button on a mobile telephone can capture and preserve a conversation. Such a recording may thereafter be replayed, or an attempt made to replay it, in a court of law. 2. The question that arises, however, is whether it is fair, on the scales of justice, for a party to record another without the latter's consent, thereby setting what may amount to a trap calculated to elicit self-incriminating statements. 3. This Ruling relates to the Defendant/Applicant's Notice of Motion dated 5th May 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, Sections 25(e), 28(2)(c) and 29(b) of the Data Protection Act, 2019, Articles 31 and 50(4) of the Constitution, and all other enabling provisions of the law. The Application sought the following orders: - 4. *THAT the audio recording and/or transcript thereof allegedly made by the Plaintiff in support of her claim and/or relied upon in these proceedings be expunged from the court record.* 5. *THAT this Honourable Court do declare that the said audio recording was obtained in breach of the Defendant's right to privacy contrary to the Data Protection Act, 2019.* 6. *THAT the costs of the application be provided for.* 7. The application is supported by the Supporting Affidavit of Brian Kimeli sworn on 5th May 2025 and is premised on the grounds that the Plaintiff seeks to rely on an audio recording allegedly capturing a conversation involving the Defendant without disclosing the identity of the person who made the recording or establishing that the Defendant consented to the recording. 8. The Applicant contends that the recording was collected and processed in contravention of Sections 25(e), 28(2)(c) and 29(b) of the Data Protection Act, 2019, as no valid explanation was provided for the collection of the data, no consent was obtained from the Defendant, and he was never informed that his personal data was being collected. 9. He further avers that the recording violates his constitutional right to privacy under Article 31 of the Constitution and relies on **Shakunt Rajnikant Shah v Bhupendra Motichand Shah & Another [2021] eKLR** for the proposition that audio recordings obtained without compliance with the Data Protection Act are inadmissible. 10. The Applicant further states that admission of the impugned recording would sanitize an illegality, occasion him prejudice, and compromise the integrity of the judicial process, and therefore urges the Court to expunge the recording and any accompanying transcript from the record. 11. The Respondent opposed the application through the Replying Affidavit sworn by Millicent Wanja Mwaniki on 16th June 2025. 12. The Respondent deposes that she personally recorded the conversation as a precautionary measure after observing that the Applicant had begun evading his obligations under their partnership, and that the recording was made solely to protect her legitimate interests. 13. She denies violating the Applicant's privacy or data protection rights and maintains that the collection, storage and use of the recording was lawful under Sections 25(f), 28(2)(f) and 28(3) of the Data Protection Act. 14. The Respondent further avers that the recording has never been disseminated to any third party and has only been produced before the Court as evidence in these proceedings. 15. She also states that a Certificate of Electronic Evidence was duly filed in compliance with Sections 78A and 106B of the Evidence Act together with the flash disk containing the audio recording. 16. According to the Respondent, the Applicant has failed to demonstrate that the recording was made by a third party or through unlawful interception, and any grievance regarding data protection ought properly to be pursued before the Data Commissioner under Section 56(1) of the Data Protection Act. She therefore contends that the application is made in bad faith, is intended to deny her justice, and ought to be dismissed with costs. 17. The Respondent in addition relies on a Certificate of Electronic Evidence issued pursuant to Section 106B of the Evidence Act. The Certificate certifies that the electronic evidence comprises WhatsApp conversations and the impugned audio recording between the parties, identifies the devices used to generate, store and print the electronic records, confirms that the devices were operating properly in the ordinary course of business, and certifies that the electronic records were produced by a person having lawful control over the relevant devices and processes for purposes of establishing their authenticity and admissibility before the Court. **APPLICANT'S SUBMISSIONS** 1. The Applicant submits that the impugned audio recording was unlawfully obtained and is therefore inadmissible in evidence. It is argued that the Respondent secretly recorded the conversation without the Applicant's knowledge or consent, contrary to Sections 25(e), 28(2)(c) and 29(b) of the Data Protection Act and Article 31 of the Constitution. 1. The Applicant maintains that the recording constitutes unlawfully obtained personal data as per **Shakunt Rajnikant Shah** that had the proposition that audio recordings obtained in contravention of the Data Protection Act should not be admitted in evidence. 2. The Applicant further submits that permitting reliance on the recording would legitimize unlawful conduct, occasion prejudice to his defence, and undermine the integrity of the judicial process. 3. Consequently, he urges the Court to expunge the audio recording and any related transcript from the court record and allow the application with costs. **RESPONDENT'S SUBMISSIONS** 1. The Respondent submits that the audio recording was lawfully obtained because she was herself a participant to the conversation and recorded it solely to safeguard her legitimate business interests in anticipation of a dispute. 1. She argues that Section 28(2)(f) of the Data Protection Act expressly permits the processing of personal data for the establishment, exercise or defence of legal claims, and that the recording does not amount to unlawful interception under the Kenya Information and Communications Act. 2. The Respondent further submits that the recording satisfies the admissibility requirements under Sections 78A and 106B of the Evidence Act, having been accompanied by a duly filed Certificate of Electronic Evidence. In support of this position, reliance is placed on **Republic v Mark Lloyd Stevenson [2016] eKLR** and **Republic v Barisa Wayu Matuguda [2011] eKLR.** 3. The Respondent further submits that she did not violate the Applicant's right to privacy since the recording was collected and used solely for purposes of these proceedings and was never disseminated to third parties. 4. She argues that Sections 25(f) and 28(3) of the Data Protection Act permit the collection and use of personal data for legitimate legal purposes and relies on **Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 Others [2018] eKLR** for the proposition that the right to privacy is not absolute. 5. It is further submitted that expunging the recording would prejudice the Respondent's right to a fair hearing under Article 50 of the Constitution, and reliance is placed on **Republic v Peter Ongera Monyenye [2019] eKLR** for the principle that relevant evidence should only be excluded where its admission would render the proceedings unfair or unlawful. 6. Finally, the Respondent contends that the Applicant has not demonstrated any prejudice arising from the admission of the recording and that any complaint concerning alleged unlawful data processing properly lies before the Office of the Data Commissioner under Section 56(1) of the Data Protection Act. Accordingly, the Respondent urges the Court to dismiss the application with costs. **ISSUES FOR DETERMINATION** 1. Having carefully considered the application, the affidavits, the submissions by counsel, and the applicable law, I find that the sole issue for determination is whether the Applicant has established sufficient grounds for this Court to expunge the impugned audio recording and transcript from the court record on account of the alleged violation of the right to privacy and the provisions of the Data Protection Act, 2019. **ANALYSIS AND DETERMINATION** 1. The admissibility of recordings as evidence is governed by Sections 78A and 106 B of the Evidence Act (Cap 80). Section 78 A provides for admissibility of electronic and digital evidence as follows: *1) In any legal proceedings, electronic messages and digital material shall be admissible as evidence.* *3) In estimating the weight, if any, to be attached to electronic and digital evidence, under subsection (1), regard shall be had to –* 1. *the reliability of the manner in which the electronic and digital evidence was generated, stored or communicated;* 2. *the reliability of the manner in which the integrity of the electronic and digital evidence was maintained;* 3. *the manner in which the originator of the electronic and digital evidence was identified; and;* 4. *any other relevant factor.* 5. Section 106 B provides further guidelines on admissibility of electronic records: *“(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on paper, stored, recorded or copied on optical or electromagnetic media produced by a computer (herein referred to as ‘computer output’) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible.”* 1. For an electronic record to be admissible in a court of law, the same must be accompanied by a certificate, and must meet the follow conditions as set out by Section 106 B (4): *“(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following* *(a) identifying the electronic record containing the statement and describing the manner in which it was produced;* *(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;* *(c) dealing with any matters to which conditions mentioned in subsection (2) relate; and* *(d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate),* *shall be evidence of any matter stated in the certificate and for the purpose of this subsection it shall be sufficient for a matter to be stated to be the best of the knowledge of the person stating it.”* 1. In **Republic v Mark Lloyd Stevenson [2016] eKLR**, the Court held that: - ***"My understanding of this section is that it makes explicit that electronic messages are admissible as evidence in Kenya provided that they satisfy the other requirements for such admission. This section does not obviate the need for establishing the relevance of the proposed evidence in the same way it does not excuse the need for authentication of the proposed evidence.”*** 1. The Court of Appeal in **County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] eKLR** emphasized the requirement of a certificate of electronic records as outlined in Section 106 B of the Evidence Act by pronouncing itself as follows: ***“the requirement of a certificate as described in section 106B is a mandatory one which cannot be obviated by constitutional prohibitions against undue regard to procedural technicalities.”*** 1. The same principle was articulated by Muchelule J (as he then was) in **William Odhiambo vs IEBC & 2 others [2013] eKLR** where the learned judge observed as follows: - ***“Section 106A of the Evidence Act (Cap 80) provides that the contents of electronic records may be proved in accordance with the provisions of section 106B. Section 106B deals with admissibility of electronic records…. Under sub-section (4), where a party seeks to give evidence by virtue of Section 106B he has, among other things, to tender a certificate….”*** 1. This Court notes that the Respondent has produced a Certificate of Electronic Evidence in compliance with Sections 78A and 106B of the Evidence Act certifying the authenticity of the electronic record and the devices used in its production. 2. The Applicant has not challenged the authenticity or integrity of the recording or the certificate itself. Rather, his objection is confined to the legality of the manner in which the recording was obtained. 3. Specifically, the Applicant contends that the recording was made without his knowledge or consent, thereby violating his right to privacy under Article 31 of the Constitution and contravening the provisions of the Data Protection Act, 2019 governing the collection and processing of personal data. 4. The Court must therefore determine whether the recording of a conversation by one of the participants, without the knowledge or consent of the other, constitutes a violation of the constitutional right to privacy and the requirements of the Data Protection Act so as to warrant the exclusion of the recording from evidence. 5. Article 31 of the Constitution of Kenya (2015) guarantees every person the right to privacy, including:- ***“……the right not to have—*** ***(c) information relating to their family or private affairs*** ***unnecessarily required or revealed;*** ***or (d) the privacy of their communications infringed.”*** 1. However, the right to privacy is not absolute. Like all constitutional rights, it must be balanced against other rights protected under the Constitution, including the right of access to justice under Article 48 and the right to a fair hearing guaranteed under Article 50. 2. In **Okiya Omtatah Okoiti v Communication Authority of Kenya & 8 Others [2018] eKLR,** it was held that:- ***“Like other rights which form part of the fundamental freedoms protected by the Bill of Rights, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.”*** 1. Similarly, while the Data Protection Act, 2019 establishes safeguards governing the collection and processing of personal data, it recognizes exceptions where such data may lawfully be processed without the consent of the data subject, including where the processing is necessary for the establishment, exercise or defence of legal claims pursuant to Section 45(c)(i). 2. This position has been reinforced in cases such as **John Muriithi & 8 others V Registered Trustees of Sisters of Mercy (Kenya) t/a “The Matter Misericordiae Hospital & Another [2018] eKLR**, and **Tumaz & Tumaz Enterprises Ltd & 2 Others V National Council for Law Reporting [2022] KEHC 14747** which affirm that relevant evidence, regardless of how it was obtained, may be admissible if it serves a legitimate legal purpose and does not prejudice the opposing party. 3. It is against this constitutional and statutory framework that the Applicant's claim falls to be determined. The Applicant asserts that the impugned audio recording was obtained without his knowledge or consent, thereby violating his right to privacy under Article 31 of the Constitution and the provisions of the Data Protection Act, 2019, while the Respondent maintains that she lawfully recorded a conversation in which she was a participant solely for purposes of preserving evidence in anticipation of litigation. 4. In determining these competing positions, the burden rested upon the Applicant to prove the facts upon which he founded his allegation of infringement. Section 107(1) of the Evidence Act provides that *"whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist,"* while Section 109 places the burden of proving a particular fact upon the person asserting it. 5. This principle was affirmed by the Court of Appeal in **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**, where the Court held that the legal burden rests on the party who substantially asserts the affirmative of an issue. Although the Applicant established that he did not consent to the recording, that fact alone was insufficient to prove an infringement of his constitutional right to privacy or a breach of the Data Protection Act. 6. He did not demonstrate that the recording was procured through unlawful interception, surveillance or any other illegal means. On the contrary, the uncontroverted evidence before the Court is that the Respondent was herself a participant in the conversation and recorded it solely for purposes of preserving evidence in an anticipated legal dispute. 7. In the present case, this Court is mindful that this application arises at an interlocutory stage of the proceedings. It would therefore be premature to undertake a detailed inquiry into the manner in which the impugned recording was obtained before the parties have tendered their evidence and been subjected to cross-examination. Such matters are more appropriately determined at the substantive hearing. 8. Indeed, the court in **Kagumu v National Cement Company (Cause E036 of 2024) [2025] KEELRC 3067 (KLR)** supported this view in holding that:- ***“The court is of the considered view that, given the preliminary stage of the proceedings, it would be premature and counterproductive to focus extensively on the manner in which the information was obtained without hearing the respective parties. The focus at this juncture, is to ensure that the substantive issues in dispute are addressed fairly and comprehensively. Dwelling on the technicalities surrounding the source or method of acquiring the evidence, especially when its relevance and authenticity are not in question, risks derailing the case from its core purpose: the pursuit of justice. Moreover, procedural objections regarding admissibility can be more appropriately dealt with during the full hearing, once all parties have had the opportunity to present their evidence and arguments and to cross examine the respective witnesses.”*** 1. Accordingly, and for the foregoing reasons, the Court is not persuaded that the Applicant has discharged the burden of proving that his right to privacy under Article 31 of the Constitution was infringed or that the impugned recording was unlawfully obtained so as to warrant its exclusion from the record. **DISPOSITION** 1. The Notice of Motion dated 5th May 2025 is hereby dismissed with costs to the Respondent. 1. The matter shall proceed to hearing on its merits, where the parties shall have the opportunity to adduce evidence and address all issues relating to the admissibility, credibility and evidential weight of the impugned audio recording. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY 2026.** **MURUNGA, J** *Delivered on virtual platform in the presence of:* *Namude Enock for the Respondent* *Wambugu for the Applicant (N/A)* *Kevin Babu - Court Assistant*