[2022] KEHC 14747 (KLR)

Tumaz and Tumaz Enterprises Limited & 2 others v National Council for Law Reporting (Miscellaneous Civil Case E144 of 2021) [2022] KEHC 14747 (KLR) (1 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14747 (KLR)

Republic of Kenya

In the High Court at Kisumu

Miscellaneous Civil Case E144 of 2021

RE Aburili, J

November 1, 2022

Between

Tumaz and Tumaz Enterprises Limited

1st Applicant

Mwal-Mart Limited

2nd Applicant

Julius Mwale

3rd Applicant

and

National Council for Law Reporting

Respondent

An unwarranted restriction to Kenya Law’s mandate to publish judicial decisions amounts to an attack on the development of jurisprudence in Kenya.

The applicants accused the respondent (National Council for Law Reporting) (Kenya Law) of breaching their right to privacy by publishing a decision of the High Court in which they were parties. The court held that the right to privacy had to be balanced with the right to access information held by the State. Access to public legal information was the property for the common good and therefore unwarranted restriction amounted to an attack on the development of jurisprudence in Kenya. The goal of publication of court decisions was to inform society about interpretation and application of the law in Kenyan courts and to ensure publicity, transparency and openness of the courts such that the public’s right to freely receive and disseminate information which was part of the right to self-expression as protected under the Constitution could not be curtailed.

Reported by John Ribia

Constitutional Law– fundamental rights and freedoms – right to privacy – elements of the right to privacy – factors to prove in a claim for breach of the right to privacy - under what circumstances would a breach to the right to privacy be actionable in a court of law - whether the right to privacy was absolute – Constitution of Kenya, 2010, article 31. Constitutional Law– fundamental rights and freedoms – enforcement of fundamental rights and freedoms - right to privacy – publication of judicial decisions - whether publishing of judicial decisions by the National Council for Law Reporting (Kenya Law) from superior courts of record breached the right to privacy of the parties featured in the cases - Constitution of Kenya, 2010, article 31. Constitutional Law- fundamental rights and freedoms - right of access to justice - how the law reporting function facilitated the right of access to justice - whether a restriction to Kenya Law’s mandate to publish judicial decisions would hinder access to justice in Kenya - Constitution of Kenya, 2010, article 48. Constitutional Law– fundamental rights and freedoms – right to access information – law reporting - duty of the National Council for Law Reporting (Kenya Law) to publish judicial decisions – application that sought an injunction to stop Kenya Law from publishing judicial decisions - whether the grant of an injunction against Kenya Law estopping it from publishing judicial decisions would curtail the public’s right to access information and the growth of jurisprudence – Constitution of Kenya, 2010 article 35; Access to Information Act (No. 31 of 2016) sections 4, 5 and 8. Statutes– interpretation of statutes – interpretation of the National Council for Law Reporting Act – mandate of the National Council for Law Reporting (Kenya Law) to publish judicial decisions - whether Kenya Law was expected to edit or verify judicial decisions before publication - whether Kenya Law had a statutory mandate to publish judicial decisions from superior courts of record - whether Kenya Law enjoyed a discretion to refuse to publish judicial decisions from superior courts of record - whether the publication of court decisions by Kenya law was dependent on any specific requests - whether Kenya Law was duty bound to pull down a judicial decision on request of either of the parties of the case - under what circumstances would Kenya Law pull down a judicial decision – National Council for Law Reporting Act (No. 11 of 1994) sections 2, 3, 8(1), 19, 20 and 21. Intellectual Property Law– copyrights – content that could be subjected to copyright protection - law reports – whether judicial decisions and laws of the land could be subjected to copyright protection - Copyright Act (CAP. 130) section 2. Constitutional Law– fundamental rights and freedoms – right to privacy – right to privacy in law reporting – anonymization of judicial decisions in law reports - what criteria did the National Council for law Reporting (Kenya Law) utilize in anonymizing judicial decisions.Words and Phrases– privacy – definition of privacy - right to be let alone - right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned - Black’s Law Dictionary.

Brief facts The applicants accused the respondent (National Council for Law Reporting) (Kenya Law) of breaching their right to privacy thereby exposing the applicants to reputational damage in their business by publishing the decision of the High Court rendered in San Electricals Ltd v Tumaz and Tumaz Enterprises Ltd & 2 Others[2020]eKLR reported by the respondent at http://kenyalaw.org/caselaw/cases/view/190727. The applicants claimed that by such publication, the respondent acted maliciously and negligently, that the respondent should have verified the decision first and that the publication significantly affected the applicants’ revenue streams as it had succeeded in chasing away the applicant’s investors and customers to the competitors.The respondent admitted reporting/publishing the decision of the court and contended that the publication of court decisions was its statutory mandate under the enabling legislation, National Council for Law Reporting Act and that such publication was not malicious as the respondent was not expected to edit or verify decisions sent to it by the superior court judges. Further, the respondent contended that to be injuncted from publishing the decision would be to curtail the public right to access of information and would also curtail the growth of jurisprudence.

Issues

Under what circumstances would a breach of the right to privacy be actionable in a court of law?

Whether the right to privacy was absolute.

Whether the publishing of judicial decisions by the National Council for Law Reporting (Kenya Law) from superior courts of record breached the right to privacy of the parties featured in the cases.

Whether Kenya Law was expected to edit or verify judicial decisions before publication.

Whether Kenya Law had the discretion to refuse to publish judicial decisions from superior courts of record.

Whether the publication of court decisions by Kenya law was dependent on any specific requests.

Whether Kenya Law was duty-bound to pull down a judicial decision on the request of either of the parties of the case.

What criteria did Kenya Law utilize in anonymizing judicial decisions?

Whether the grant of an injunction against Kenya Law estopping it from publishing judicial decisions would curtail the public right to access of information and the growth of jurisprudence.

Whether judicial decisions and laws of the land could be subjected to copyright protection.

Held

Privacy was the right to be left alone, right of a person to be free from unwarranted publicity. It was the right to live without unwarranted interference by the public in matters with which the public was not necessarily concerned.

Privacy was a facet of human right hence it was inalienable from the personality of a human being. The right to privacy was guaranteed under article 31 of the Constitution. Although the applicants did not specify what aspect of their privacy was violated, and neither did they cite the correct provisions under which the motion was brought, of article 31(c) of the Constitution guaranteed every person’s right not to have information relating to their private affairs unnecessarily revealed.

The right to privacy was closely linked to the right to inherent dignity and the right to have that dignity respected and protected.

In determining whether the right of privacy had been violated it had to be established whether the applicant or petitioner had demonstrated to the satisfaction of the court that the information was obtained in an intrusive manner, that the information was about intimate aspects of the applicants’ personal life; and that it involved data provided by the applicant for one purpose which was then used for another; that the information as obtained by the respondent was disseminated to the press or the general public or persons from whom the applicants could reasonably expect such private information would be withheld.

The mandate of the respondent was derived from the National Council for Law Reporting Act (the Act). Section 2 of the Act established the National Council for Law Reporting (the Council). Under Section 8(1) of the Act, the Editor National Council for Law Reporting (the Editor) was responsible for the preparation and publication of the Kenya Law Reports and for such other publication as could be approved by the Council under section 3 of the Act.

Section 19 of the Act provided that every judge of the superior court of record was to as soon as practicable after delivering a judgment, ruling or an opinion cause to be furnished to the Editor a certified true copy of the judgment, ruling or opinion delivered by him. That was mandatory and it was one of the parameters that the superior courts were measured by in the performance measurement understanding evaluations which were undertaken on an annual basis for each and every judge. Such determinations or decisions had to be submitted to Kenya within seven days of the delivery of the decision, whether it was a ruling or a judgment.

Under section 20 of the Act, returns were to be made by the registrars of the superior courts on a monthly basis, to the Editor, providing him with a list of all judgments, rulings or opinions delivered by the High Court or the Court of Appeal as the case could be. Section 21 of the Act provided that Kenya Law Reports was to be the official law reports of Kenya which was to be cited in proceedings in all the courts of Kenya.

The right of privacy was the right of a person to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the pubic in matters with which the public was not necessarily concerned. An actionable invasion of the right to privacy was the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public had no legitimate concern, or the wrongful invasion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. It also included, usually, by statute, a constitutional right to be left alone from governmental intrusion into one’s private affairs, although the rights and the needs of the Government to provide protection to society were balanced.

To be actionable, the prying or intrusion into the claimant’s private affairs must be of a type which was offensive to a reasonable person, except in the case of wrongful appropriation of one’s name or likeness where the act complained of need not be highly offensive to constitute invasion of privacy.

Public disclosure of private facts or affairs occurred when a person gave publicity to a matter that concerned the private life of another but it had to be a matter that would be highly offensive to a reasonable person and that it was not of legitimate public concern. In an action for invasion of privacy based on the alleged wrongful disclosure of private facts, the plaintiff/claimant had to show that the disclosure complained of was actually public in nature. There was no liability when a defendant merely gave further publicity to information about the plaintiff that was already public.

In an action for a privacy right violations, a claimant had to allege and prove; that there was an unwarranted invasion of the individual’s privacy;

that there was intentional intrusion on his her private concerns;

that publication was without the claimants’ consent, where such written consent was required; and

that the claimant’s name or picture was used for trade or advertising purposes, where privacy invasion was alleged by publication of one’s name or likeness for trade and advertising purposes.

In actions for privacy right violations, truth was not a defence and it was not necessary to allege or prove special damage. A suit for damages or an injunction where damages would not adequately redress an injury was sufficient.

The Government could not be liable for privacy intrusion by communicating public information, if no malice on the part of the Government was pleaded and proved. For example, the Government or public entity would not be liable for releasing information regarding a person’s criminal conviction to the public if the applicant; had discussed about the conviction in a letter to a newspaper;

criminal conviction record was public information;

was under probation supervision; and

put forth no evidence about confidential information release to the public.

The main suit between the parties in the reported decision was pending before court. The application which gave rise to the published ruling was interlocutory in nature. It was heard in public and a ruling publicly pronounced. The applicants never sought for a private or in camera hearing or delivery of the ruling by the court in private. The applicants also never sought for any anonymity of the parties or parts of the ruling. They never asked the court to consider the matter private although the dispute was between private persons/natural and corporate. No minors were involved in the dispute. It was not a matter involving sexual offences or family disputes. It was a commercial dispute between and among entities.

Nobody requested for publication. The court was duty bound by statute to send a certified copy of the ruling to the Editor for publication of the ruling. The Editor did not err in publishing the decision.

The right to privacy was one of the most cherished rights in the Constitution. However, privacy was not absolute or sacrosanct. It had to be balanced with the other rights and needs of the other citizens and the person’s own actions in pursuing exposure or encouraging it.

There was no evidence to show that the respondent required consent of the applicants to publish the decision received from the court. There was no evidence to show that the respondent had malice in publishing the ruling. No particulars of malice were stated or disclosed by the applicants. The hearing of the application giving rise to the ruling having been done in public, the respondent only published information or the decision which was already public information, information which the public had a legitimate right to access.

There was no unwarranted invasion of the applicants’ privacy. There was no intentional intrusion on the applicants’ private concerns and that no consent, whether written or oral was required for the respondent to publish the decision which publication was in their statutory mandate.

The applicants had not demonstrated to the court by way of evidence that the respondent was under any duty to verify or edit and to edit or verify what in particular, from the ruling of the court, before deciding whether to publish it or not. That court had also not been told that the decision as published had inaccuracies or errors committed by the respondent. Neither was there evidence that the respondent was under any legal duty to edit the decision upon receiving it from the court who was the author thereof. The court was not told whether the respondent should have rejected the decision and or sought for further permission from a court before publishing it.

Where a party had publicly participated in a public hearing and decision making and in a case which did not fall in the categories of cases where there was need for redaction of some material or anonymization, then that person could not turn around and claim that their privacy had been violated by the publication of the court decision. The facts disclosed in the ruling publicized were public facts and there was no scintilla of evidence to show that those facts in the ruling would be offensive and objectionable to a reasonable person of ordinary sensibilities.

If the applicants considered their case to be so private in nature and wanted the public including their customers and or competitors not to know that the applicants were involved in any of litigation history with other persons, nothing prevented the applicants from applying to the National Council for Law Reporting, the respondent, for anonymization of the part of the ruling. Failure to do so, the respondent could not be directed by the court to pull down a law report whose accuracy, as verbatim public information of court decisions had not been challenged. The court had not been shown what reputational damage the applicant had or stood to suffer by the ruling following its publication by the National Council for Law Reporting.

The State was the major guarantor of human rights and freedoms and that to injunct the respondent from disseminating court decisions to the public, without any proof of damage or injury that such dissemination would cause to an individual or public, was tantamount to curtailing the public’s right to access information as guaranteed in article 35 of the Constitution and further curtailing the growth of jurisprudence in Kenya. Curtailing the publication of court decisions would erode the public’s confidence in the courts.

Section 52(1)(q)(iv) of the Indian Copyright Act provided that publication of court judgments did not constitute an infringement of copyright. That was because judgments and court orders were exempted from copyright protection and were in the public domain, the instances of compiling them off as original works were common place. Only the court could expressly bar the publication of a case or where the law barred such publication. In Kenya, Section 2 of the Copyright Act excluded statutes or written laws and judicial decisions from being literary works that could be subjected to copyright. One could not claim that they owned a statute or a court decision and sought for its protection under the Copyright law.

The right to privacy had to be balanced with the right to access information held by the State. Access to public legal information was the property for the common good and therefore unwarranted restriction amounted to an attack on the development of jurisprudence in Kenya. Further, it would muzzle the respondent’s statutory mandate if parties who elected to participate in public trials turned out to sue the National Council for Law Reporting or even the superior court judges who were also mandated by law to submit their decisions for publication by the respondent.

The National Council for Law Reporting could not modify or remove particulars from a case except in limited cases, involving children, sexual offences or in family matters such as divorce or adoption or where an application for anonymization was made and allowed or where the court had given such directions in a matter where, publicizing one’s private affairs without a legitimate public concern would violate that person’s right to be free from unwarranted appropriation of one’s personality.

Article 50(1) of the Constitution guaranteed every person the right to a fair hearing and to have any dispute that could be resolved by application of the law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Accordingly, since the National Council for Law Reporting privacy policy was in place where it redacted cases in line with the law for redaction and anonymization, the applicant should have approached the respondent to invoke those provisions and not to seek to injunct the respondent from publishing a ruling submitted to it by the judge who was the author, in compliance with the law.

The decision had to be submitted to the respondent for publication within the next seven days. It would be such a dangerous precedent setting for the superior court judges to be looking over their shoulders to see who was watching them and who would be reading their decisions before making the decisions themselves and deciding which decisions should be published and which ones should not, which was a negation of the principle of decisional independence of Judges.

The goal of publication of court decisions was two-fold; to inform society about interpretation and application of the law in Kenyan courts; and

to ensure publicity, transparency and openness of the courts such that the public’s right to freely receive and disseminate information which was part of the right to self-expression as protected under the Constitution was not curtailed.

The principle of legal certainty which was a sine qua non of constitutional democracy, made the duty of the State to ensure that courts worked in a predictable manner. The principle of legal uniformity implied that court decisions adopted by different courts or in cases of similar subject matter or causes of action would carry identical legal interpretation.

Publicity of court decisions was an instrument of social control and increased trust in Kenyan courts. That was not to say that publication was absolute. That was why the Data Protection Act and other laws like the Children’s Act provided for anonymization and redaction. Where restrictions (limitations) were provided in law, the limitation would be weighed and evaluated in line with the constitutional dictates. Publication of court or judicial decisions was in compliance with the freedom to receive/access information.

As everywhere in society, also to the Judiciary, the internet had brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the Judiciary could increase its visibility and transparency substantially.

Published court decisions were important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market. In addition, it would be a violation of the right to access justice for those persons who could not afford private legal representation if they were curtailed from accessing court decisions and the only way to access those court decisions was by way of publication. Past court decisions assisted even the public spirited litigants.

The Data Protection Act of 2019 was enacted to give effect to the provision of article 31(c) and (d) of the Constitution which guaranteed every person the right not to have information relating to the family or private affairs unnecessarily required or revealed and the right not to have the privacy of their communication infringed. The Act also created offences against persons or data controllers who failed to comply with various provisions of the Act.

The respondent had developed anonymization guidelines which the applicants should have taken advantage of and applied to the respondent, with acceptable reasons of course, to anonymize the decision and only when the respondent unreasonably declined the request, would the applicants seek intervention of the court. No such request was made by the applicants as required under section 52(1)(b) of the Data Protection Act.

The applicants failed to discharge the burden of proving that their privacy was violated by the National Council for Law Reporting’s publication of a court ruling in a matter which was heard publicly and the decision rendered publicly court, which decision or case did not fall in any of the categories of cases requiring redaction or anonymization.

Application dismissed.

Orders Each party was to bear their own costs.

Citations CasesKenya Coalition for Restoration of Democracy (CORD) & 2 others v Republic & 10 others Petitions 628, 630 of 2014 & 12 of 2015; [2015] eKLR (Consolidated) - (Explained)

Gicheru, Johnson Evan v Andrew Morton & another Civil Appeal 314 of 2000; [2005] KECA 16 (KLR) - (Explained)

JWI & another v Standard Group Limited & another Petitions 466 & 416 of 2012; [2015] eKLR - (Explained)

Katiba Institute v Presidents Delivery Unit & 3 others Constitutional Petition 468 of 2017; [2017] KEHC 2183 (KLR) - (Explained)

Kenya Human Rights Commission v Communication Authority of Kenya & 4 others Constitutional Petition 86 of 2017; [2018] eKLR - (Explained)

MWK & another v Attorney General & 3 others Constitutional Petition 347 of 2015; [2017] eKLR - (Explained)

Oduory, Emmanuel Mambo v National Council For Law Reporting & 2 others Civil Suit E211 of 2020; [2021] KEHC 4931 (KLR) - (Explained)

San Electricals Limited v Tumaz and Tumaz Enterprises Ltd & 2 others Civil Case 55 of 2019; [2020] KEHC 8203 (KLR) - (Mentioned)

Wanjiru , Jessica Clarice v Darina Aesthetics & Reconstruction Centre & 2 others Constitutional Petition 410 of 2016; [2017] eKLR - (Mentioned)

South AfricaMistry v Interim National Medical and Dental Council of South African (CCT13/97) [1998] ZACC 10; 1998 (4) SA 1127; 1998 (7) BCLR 880 (29 May 1998) - (Mentioned)IndiaRajagopal v State of Tamil Nadu AIR 1995 AIR 264, 1994 SCC (6) 632 - (Explained)United States Uranga v Federated Pubis, Inc 138 Idaho 550 (2003) - (Mentioned)

Zieve v Hainston 266 Ga APP 753 (Ga Ct App 2004) - (Explained)

CanadaAubry v Editions Vice Versa Inc [1998] 1 SCR 59 - (Explained)TextsGarner, BA (2014), Black’s Law Dictionary St Paul, Minnesota: Thomson Reuters 10th EdnStatutesKenya Access to Information Act, 2016 (Act No 31 of 2016) sections 4, 5, 8, 9 - (Interpreted)

Children Act, 2001 (Act No 8 of 2001) In general - (Cited)

Civil Procedure Act (cap 21) sections 1A, 1B, 3, 3A, 63(e) - (Interpreted)

Civil Procedure Rules, 2010 (cap 21 Sub Leg) order 5; rule 1 - (Interpreted)

Constitution of Kenya, 2010 articles 28, 31, 35, 39, 48, 50(1) - (Interpreted)

Copyright Act, 2001 (Act No 12 of 2001) section 2 - (Interpreted)

Data Protection Act, 2019 (Act No 24 of 2019) section 52(1)(6) - (Interpreted)

National Council for Law Reporting Act, 1994 (Act No 11 of 1994) sections 2, 3, 7, 8(1); 19; 20; 21 - (Interpreted)

IndiaCopyright Act, 1957 section 52(1)(q)(iv) - (Interpreted)International Instruments European Convention on Human Rights article 8(2)

Universal Declaration of Human Rights (UNDHR), 1948 article 12

AdvocatesNone mentioned

Judgment

“I cherish my privacy, and woe betide anyone who tries to interfere with that.” Jeff Beck. Introduction 1. In this fairly detailed judgment, this court is being called upon to determine the question of whether the privacy rights of the applicants herein have been violated, by the respondent’s publication of a court ruling in the electronic Kenya Law Reports (eKLR).

2. These proceedings were initiated by way of an originating notice of motion dated November 1, 2021. The applicants are Tumaz and Tumas Enterprises Limited, Mwal-Mart Limited and Julius Mwale while the respondent is the National Council for Law Reporting (NCLR). The 1st and 2nd applicants are described as limited liability companies while the 3rd applicant is the Director of the 1st and 2nd applicants and is also the founder of Mwale Medical and Technology City (MMTC) which encompasses the 2nd applicant.

3. The respondent on the other hand is a state corporation anchored under the Office of the Attorney General and Department of Justice. Its statutory mandate as established under section 3 of the National Council for Law Reporting Act No 11 of 1994 is the monitoring and reporting on the development of Kenya’s jurisprudence through publication of Kenya Law Reports and updating the Laws of Kenya.

4. The applicant’s complaint against the respondent is that by the respondent publishing the decision by Hon. Lady Justice T.W. Cherere in the case of SanElectricals Limited v Tumaz and Tumaz Enterprises Ltd & 2 Others [2020]eKLR dated February 20, 2020, which decision is reported at http://kenyalaw.org/caselaw/cases/view/190727, the respondent infringed the applicant’s right to privacy and gravely undermined the applicants’ business reputation which has in turn significantly affected the applicant’s revenue streams.

5. It is asserted by the applicants that kenyalaw.org is a public domain and therefore the impugned legal Report has been published to a global audience and violated and infringed on the applicant’s rights under the data protection laws.

6. According to the applicants, the decision was maliciously published as the respondent failed to inquire into the facts of the case prior to the publication thereof.

7. The applicants aver that as a result of the impugned publication, and the respondents’ negligence, the applicants’ reputation as outstanding and honest business entities and or persons has been ruined and that they have consequently suffered loss and damage for which they are aggrieved.

8. The applicants further lament that the impugned publication has devastatingly impacted the reputation and standing of the applicants and their affiliate companies in Kenya and overseas which impact has the potential to cause a serious and long-lasting impact on the applicants.

9. Further, it is asserted that the reality of today’s digital landscape is that people frequently formulate their first and sometimes only opinion a person or a business based on what their digital footprint tells them.

10. According to the applicants, most of the people reading the search results will simply see that the applicants are involved in legal action and will assume the worst, and will assume that the applicants were sued or were caught doing something shady, and were taken to court over it.

11. The applicants maintain in their pleadings that their business reputation which they have built for years has been irreparably damaged as the Legal Report has made many of the applicants’ suppliers question the applicants' credibility.

12. The applicants accused the respondent of failing to verify, ascertain and validate the corrections and accusing of the legal information in the impugned Legal Report prior to publication and that such failure is detrimental to the applicants. They add that the matter is still pending before this court and has high prospects of success.

13. It is claimed that the publication has succeeded in chasing away investors and customers from the applicants to their competitors.

14. Further that the applicants are apprehensive that the continued publication of the Legal Report will have long lasting impact and the applicants will not be able to regain their consumers and suppliers first.

15. It is asserted that prior to initiating these proceedings the applicants approached the respondent, the site host of the impugned Legal Report with a view of having the same pulled down but that the Respondent has indicted the unwillingness to do so without a court order directing it to do so. According to the applicants, this is a purely commercial dispute between the parties.

16. Finally, it is alleged by the applicants that the respondent stands to suffer completely no prejudice if the orders sought are issued, bearing in mind the fact that not all the judgments, rulings and opinions of superior courts are published by the respondent.

17. According to the applicants, the respondent picks and chooses which judgments, rulings and opinions to report/public, and that it is only fair that it be made to desist from publishing reports pertaining the applicants, in the interest of justice.

18. The applicants urged this court to exercise its inherent jurisdiction to order the decisions as impugned to be pulled down from the respondent’s website.

19. For the above reasons/grounds, the applicants pray for the following substantive orders against the respondent:1. Spent2. Spent3. This court be pleaded to order that the decision in San Electricals Limited v Tumaz and Tumaz Enterprises & 2 others [2020]eKLR dated February 20, 2020 be permanently pulled down from the Respondent’s websites or in whatever form.4. An injunction do issue permanently restraining the respondent from publishing any decision that pertains the respondent decision (sic) on their websites or in whatever form.5. The applicants be at liberty to apply for such further orders and/or directions as the Honourable court may deem just and expedient to grant.6. Costs of the application be borne by the respondent.

20. The originating notice of motion is brought under the provisions of sections 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act and order 51 rule 1 of the Civil Procedure Rules, 2010.

21. It is supported by an affidavit sworn by Mr Julius Mwale, the 3rd applicant and direction of the 1st and 2nd applicants on November 1, 2021.

22. In the said affidavit the 3rd applicant deponent has reiterated the grounds which I have reproduced above and annexed a copy of the Legal Report dated February 20, 2020 together with the correspondence between the applicant’s counsel Javier Georgiadis & Sylvester Law LLP and the then CEO, Editor, for the respondent, dated 13/5/2021. As the depositions in the supporting affidavit are a replica of the grounds which I have reproduced hereinabove, it serves no purpose to replicate them here.

23. The origination motion was opposed by the respondent who filed a replying affidavit sworn by the respondents current CEO Prof Jack Mwimali on January 21, 2022 wherein he deposes that the allegations leveled against the respondent in relation to its statutory mandate are not the and that those allegations border on either the applicants’ lack of understanding of the functions of the respondent or deliberate attempt by the applicants to mislead and distort the true facts from this curt and the entire public.

24. The respondent contends that in publishing the impugned decision, it was carrying out its statutory mandate and that under section 19 of the National Council for Law Reporting Act, the statute establishing the respondent, every judge of the superior court is mandated to furnish to the editor of the respondent as soon as possible a certified copy of the judgment or ruling for purposes of reporting and publication, which mandate , according to the respondent, is in line with the constitutional provisions protecting the right to information under article 35 of the Constitution that counterbalances the right to privacy under article 31.

25. According to the respondent, it received and published the decisions, in compliance with the law and as received from the primary producer.

26. Further, that the National Council for Law Reporting Act does not give the respondent any powers to change, alter, inquire or seek to verify certified a duly forwarded decision before publishing the same, save where there is express prior instructions and or requests for anonymization or data protection, which was not the case in the instant matter.

27. The respondent contents further that the decision in question was a court decision, representing a fair representation of the proceedings that were conducted in court and forwarded by the judge to the respondent hence the respondent cannot be held responsible in any way for the contents and any resultant repercussions on parties arising from the publication.

28. The respondent further contends that there is no demonstration of which part of the published decision appears to injure the applicants’ reputations as the matters in the decision are not personal in nature but arising from an agreement between the parties and which agreement can be found elsewhere to the public besides the reporting.

29. Further, that in any event, the decision complained of was as a result of an open hearing where parties subjected themselves to the open hearing with full particulars of the documents being filed by their respective counsel and hence, if the applicants wanted and required any such protection, they should have taken necessary steps to ensure that the same is not accessible in the public domain.

30. That should this court grant the orders sought in the originating motion, the effect would be to permanently injunct the respondent from ever publishing anything touching on the applicants, which injunction will be barring the respondent from carrying out the statutory mandate, against public policy and breach of the right to access to information, thereby setting a bad precedent wherein parties who willingly subject themselves to hearing in open courts will seek to unnecessary protect the publication of the findings and interpretation of the law and that this will be recipe to curtail the development of jurisprudence.

31. The respondent therefore urged this court to dismiss the originating motion filed by the applicants against the respondent.

Submissions 32. The originating notice of motion was canvassed by way of written submissions. Although the applicants’ counsel Mr Mbeka sought and obtained leave of court on 9/2/2022 to file supplementary affidavit no such supplementary affidavit was filed. When applicants’ counsel appeared before me on 22/9/2022, he urged the court to give a judgment date as both parties had filed written submissions to canvass the originating motion.

The Applicants’ Submissions 33. In their counsel’s submissions dated March 22, 2022 and filed in court on 23/3/2022, the applicants reiterate their prayers in the originating motion insisting that the impugned legal reporting of the court’s decision by the respondents infringed on the applicants; privacy and threatened their constitutionally guaranteed right and lawful entitlement to inherent dignity.

34. The applicant’s counsel framed two issues for determination.i.Whether the publication of the impugned law Report is within the respondent’s lawful mandate vis avis the applicants right to privacy;ii.Whether the impugned law report has and/or may potentially unfairly prejudice the applicants herein.

35. On the first issue of whether the publication of the impugned law report is within the respondent’s lawful mandate vis a vis the applicant’s right to privacy, the applicant’s counsel submitted quite extensively and cited the cases of Katiba Institute v President’s Delivery Unit & 3 Others [2017]eKLR.

36. Counsel submitted that the publication is an affront to their right to privacy and inherent dignity as person, both juristic and natural and that such publication is ultra vires and constitutional provisions on public access for information held by the State, including the various agencies and or departments such as the respondent herein. Reliance was placed on the Katiba Institute case (supra) at paragraph 31 thereof inter alia that information held by the state is accessible by citizens and that information is available on request, and without delay; citing article 35 of the Constitution that there are no conditions for accessing information.

37. It was further submitted on behalf of the applicants that the Access to Information Act was enacted to give effect to article 35 of the Constitution and the Act at section 4 gives the procedure for accessing information, highlighting that sections 5 & 8 provides for how the citizen can access the required information and the duty of the public entity in possession of such information requested by a citizen.

38. The applicant’s counsel submitted that the respondent’s publication cannot be rightfully informed by a desire to fulfil the mandate of facilitating public access to information held by the State. He reiterated the holding in the Katiba Institute case what the public right to access information held by the state means; and urged this court to apply the interpretation given in the Katiba Institute case.

39. The applicant’s counsel further submitted that the respondent had not demonstrated the existed of any request for the impugned law Report and or any information anciliary thereto by a citizen and that the publication to the internet based platform implies universal global access to information by non-citizens who are ineligible to enjoy Municipal rights of Kenyan citizens as enshrined under the constitution.

40. Further submission was that the legal framework on access to information is informed by the desire to strike a balance between civic rights and private rights, such as the applicant’s right to privacy.

41. Counsel urged this court to find that the respondent by publishing the decision was overzealous and maliciously misapprehended its roles and was in contravention of article 35 of the Constitution and section 4, 5, 8 and 9 of the Access to Information Act.

42. On the second issue of whether the impugned law report has and or may potentially prejudice the applicants herein, counsel for the applicants submitted in detail that the consequence of the publication is that the applicants have been portrayed in a negative light as shrewd and cunning in their commercial dealings a majority of which are characterized by dubious and underhand schemes.

43. Further, that the applicants are household names in the emerging sector of techno-cities, a spin-off for traditional real estate, wherein pioneering innovators have invested humongous sums of pecuniary resources to realize portentous cities and neighbourhoods where none existed before.

44. That their associates are international entities, unfamiliar with Municipal customs and usages including principles applicable in the settlement of civil disputes and procedures applicable upon conclusion of a suit, including reporting on decisions and judgments of superior courts. That the respondent’s failure to adhere to the statutory guidelines, this has the potential detriment of the applicants.

45. According to the applicants, the Information was never requested for by any Kenyan citizen yet the said information as now indiscriminately available universally including to the applicants’ existing and future business associates.

46. Counsel urged this court to find that the publication is rife with potential for libelous and or defamatory consequences, which may result in a reputational and or pecuniary cost to the applicants, fair beyond the damage already realized.

47. On quantum of pecuniary loss, the applicant’s counsel relied on Johnson Evan Gicheru v Andrew Morton & another [2005]eKLR.

48. On the purpose of compensation for damages which operates in a dual way - as vindication of the Plaintiff to the public and as a consolation to him for wrong gone; and compensation being a solatium rather than a monetary recompense for harm measurable in money.

49. Counsel submitted that in this case, whereas demonstration of actual loss suffered would be ideal, it is not necessary where it is increasingly apparent that there is significant potential for loss.

50. Finally, the applicants’ counsel argued that this court should find that should the respondent be inclined to publish the decision in the stated case, then it should wait to publish the same after the trial court has effectively determined the dispute between the parties to avoid prejudicing the applications herein.

The Respondent’s Submissions 51. The respondent National Council for Law Reporting filed its submissions through the Office of Attorney General, Kisumu Office. The submissions are dated March 18, 2022 and filed on March 21, 2022 an indication that the respondent’s submissions were filed earlier than the applicants’ submissions.

52. According to the respondent, its reporting of the decision of the court is a statutory mandate after receiving the decision from the Judge.

53. Further, that the respondent does not edit, inquire into or seek to verify a forwarded decision hence it cannot be accused of malice and negligence by the applicants. The provisions of section 3 of the National Council for Law Reporting Act were cited on the function of the respondent.

54. The respondent further submitted that permanently injuncting the respondent would jeopardize the citizen’s right to access information.

55. Further, that the respondent, has in place anonymization guidelines as espoused in section 52(1)(c) of the Data Protection ActNo 24 of 2019 which provides for processing of personal data and which guidelines allow for redaction and or pulling down of information under certain circumstances but that the applicants herein have not requested for anonymization.

56. The respondent further submitted that the public’s right to information as contemplated in article 35 of the Constitution and the promotion and protection of the rule of Law is achieved by the publication because public information is common property for the public good and hence it must be accessible to all without any restrictions, which later restrictions, is tantamount to an attack on the development of jurisprudence.

57. The respondent submitted that the applicants elected to participate in a public trial where all documents lodged are publicly accessible and judgment sought to be pulled down was delivered in public and that if there was need or reason for anonymization, nothing prevented the applicants from making such a request through the trial court during the trial or act the delivery of the decision hence this application is an afterthought, mischievous and attempt to muzzle the respondent’s statutory mandate.

58. The respondents wondered aloud if the applicants would have filed this application if the outcome of the case would have been different ie in their favour.

59. Reliance was placed on the decision in Emmanuel Mambo Oduory v National Council for Law Reporting & 2 others [2014]eKLR where S Chitembwe J dismissed a suit against the respondent herein and held that the respondent is protected by the doctrine of absolute privilege.

60. The respondent further and in conclusion, submitted that the applicants have not demonstrated which investors have rejected working with them as a result of the report public by the respondent if maintained that the applicants are mischievous and that the application is an enemy of the right to access to information and development of jurisprudence, urging this court to dismiss the application with costs.

Analysis and Determination 61. I have considered the applicants’ originating notice of motion, the grounds thereof and the supporting affidavit and the two annextures. I have given equal consideration to the respondent’s replying affidavit and written submissions by the respective parties’ counsel. In my humble view, the main issue for determination is whether this motion has any merit. There are other ancillary questions that I will pose and endeavour to resolve.

62. As earlier stated, the application is an originating notice of motion brought under the provisions of sections 1A, 1B, 3A and 3B as well as section 63(e) of the Civil Procedure Act and order 5 rule 1 of the Civil Procedure Rules and other enabling provisions of the law.

63. The applicants accuse the respondent of breaching their right to privacy and thereby exposing the applicants to reputational damage in their business by publishing the decision of this court rendered by the Hon. Lady Justice T.W. Cherere on 20/2/2020 in San Electricals Ltd v Tumaz and Tumaz Enterprises Ltd & 2 others[2020]eKLR reported by the respondent at http://kenyalaw.org/caselaw/cases/view/190727.

64. The applicants claim that by such publication, the respondent acted maliciously and negligently, that the respondent should have verified the decision first and that the publication significantly affected the applicants’ revenue streams as it has succeeded in chasing away the applicant’s investors and customers to the competitors.

65. According to the applicants, there was no request for publication of the decision in question and that despite the request for pulling down due to its negative commercial impact on the business of the applicants, the respondent declined and asked for a court order to that effect.

66. On the part of the respondent, it admits reporting/publishing the decision of the court and contends that the publication of court decisions is its statutory mandate under the enabling legislation, National Council for Law Reporting Act and that such publication is not malicious as the respondent is not expected to edit or verify decisions send to it by the superior court judges.

67. Further, the respondent contends that to be injuncted from publishing the decision would be to curtail the public’s right to access information and would also curtail the growth of jurisprudence.

68. According to the respondent, what the applicants should have done, if they had issues with the decision which was rendered publicly after a public hearing, was to apply for anonymization of the decision applying the established anonymization principles as the respondent had in place developed anonymization guidelines.

69. The above is a synopsis of each parties’ positions in this matter.

70. Having summarized the respective party’s position in this case which I find unique, I must answer the following questions which arise from the facts pleaded and the cited law, and in no order of preference as some questions shall be answered in combination with others.1. Did verbatim publishing or reporting of the court decision breach the applicants’ party right to privacy and or expose them to reputational damage?2. Were the respondents expected to have edited or verified the decision and if so, for what purpose, before publishing it?3. Does the respondent have statutory mandate to publish superior court’s decisions and if so, does it enjoy any discretion to refuse to publish such decisions?4. Is publication of court decisions dependent on any specific requests?5. Is the respondent duty bound or obliged to pull down a law report and if so, under what circumstances?6. Whether the applicant is entitled to an injunction sought and if so, whether such an injunction would curtail the public’s right to access information and growth of jurisprudence?7. What remedy do the applicants have?8. What orders should this court make?9. Who should bear costs of this Motion?

71. On to whether the verbatim publishing or reporting of the court’s decision breached the applicants’ party’s right to privacy and or exposed them to reputational damage as alleged by the applicants in their pleadings, affidavit and submissions, I will resolve this question by combining it with the 2nd and 3rd questions. Before I do that, I will first define what privacy is.

72. Black’s Law Dictionary defines privacy as, the “right to be let alone, right of a person to be free from unwarranted publicity; and right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.”

73. From the onset, it must be appreciated that privacy is a facet of human right hence it is inalienable from the personality of a human being. In Kenya, the right to privacy is guaranteed under article 31 of the Constitution. The article provides that:“Every person has the right to privacy, which includes the right not to have:a.Their person, home or property searched;b.Their possessions seized;c.Information relating to their family or private affairs unnecessary required or revealed.”

74. The relevant provision here is sub clause (c), although the applicants did not specify what aspect of their privacy was violated, and neither did they cite the correct provisions under which the motion was brought, sub clause (c) of article 31 of the Constitution guarantees every person’s right not to have information relating to their private affairs unnecessarily revealed.

75. In Jessica Clarice Wanjiru v Darina Aesthetics & Reconstruction Centre & others [2017]eKLR, privacy was defined as:“The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.In the above sense, any intrusion of personal life by whatever means or form such as photography, written articles or caricatures may be ground for an action for breach of privacy.”

76. In Coalition for Restoration of Democracy (CORD) & 2 others v Republic & 10 others [2015]eKLR - it was held inter alia that:“Protecting privacy is necessary if an individual is to live an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic plurastic society.The importance of privacy to an individual and society certainly justices the conclusion that it is a fundamental social value, and should be vigorously protected in law.Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part.”

77. The right to privacy is closely linked to the right to inherent dignity and the right to have that dignity respected and protected, as specified in article 28 of the Constitution.

78. The right to privacy and to inherent dignity as stated above are contained in our expansive Bill of Rights which is the cornerstone of our democracy. Under article 12 of the Universal Declaration of Human Rights (UDHR) which Kenya is a party to:“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attack upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

79. In MWK & another v Attorney General & 3 others [2017]eKLR , it was observed that:“Dignity is a founding value of our Constitution. It informs most if not all of the rights in the Bill of Rights and for that reason is of central significance in the limitations analysis.The value of dignity in our constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our part in which human dignity was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy, respect for the intrinsic worth of all human beings.Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is value that informs the interpretation of many, possibly all, other rights. This court acknowledges the importance of the constitutional value of dignity in interpreting rights such as the right equality, the right not to be punished in a cruel, inhuman or degrading way and the right to life. Human dignity is also a constitutional value that is of central significant in the limitations analysis. Dignity is not only a value fundamental to our Constitution, it is a justifiable and enforceable right that must be respected and protected.”

80. Further in Kenya Human Rights Commission v Communication Authority of Kenya & 4 others [2018]eKLR the court had this to say about the right to privacy:“Privacy is a fundamental right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights, such as freedom of expression, information and association.The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction and liberty, a “private sphere” with or without interaction with others free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals.Activities that restrict the right to privacy, such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim and proportionate to the aim pursued.”

81. In JWI & another v Standard Group Limited & another [2015]eKLR , the court stated as follows on the scope of the right to privacy:“In determining the scope of the right to privacy, the Consultative Assembly of Council of Europe has defined article 8(2) of theEuropean Convention on Human Rights, which provides for the right to privacy of an individual’s private and family life, his home and correspondence as follows:“The right to privacy consists essentially in the right to live one’s own life with a 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-revelations of irrelevant and embarrassing facts, unauthorized publication of private information given or received by the individual confidentially.”

82. In this case, therefore, it is for this court to determine whether the publication by the respondent of the decision of the court following a public hearing and determination, by the court was in violation of the applicant’s right to privacy or that it exposed the applicants to reputational damage.

83. Among the factors to be considered in determining whether the right of privacy has been violated are that the court must establish whether the applicant or petitioner has demonstrated to the satisfaction of the court that the information was obtained in an intrusive manner, that the information was about intimate aspects of the applicants’ personal life; and that it involved data provided by the applicant for one purpose which was then used for another; that the said information as obtained by the respondent was disseminated to the press or the general public or persons from whom the applicants could reasonably expect such private information would be withheld. This is what the South African Constitutional Court held in the case of Mistry v Interim National Medical and Dental Council of South African(1998)SA 1127(CC).

84. The question is whether the originating motion herein and the claims leveled against the respondent by the applicants meet the above threshold

85. The respondent in rebutting the assertions by the applicant contends that its publication of the decision in question and by and large all decisions of superior courts is a statutory mandate under the National Council for Law Reporting Act. Further, that in publishing the said decisions, it is under no duty to edit or verify the same as it publishes the decisions as send to it by the judges of the superior courts hence no malice can be attributed to the publication.

86. In addition, the respondent contends that to injunct it from publishing the court decisions would curtail the public’s right to access information and curtail the growth of jurisprudence in the country.

87. Therefore, to answer the question of whether the applicant’s assertions establish conditions that must be met for a claim for the breach of their privacy to be proven, I must analyze the statutory mandate of the Respondent and their contention that an injunction against them would curtail the public’s right to access information as well as the growth of jurisprudence.

88. The mandate of the respondent is derived from the National Council for Law Reporting Act No 11 of 1994, the long title and preamble to the said Act is, “An Act of Parliament to provide for the establishment of a National Council for Law Reporting to publish Kenya Law Reports and provide for connected purposes.”

89. Section 2 of the said Act establishes the National Council for Law Reporting referred to in the Act as the “council.”

90. The council, which is the respondent herein is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.

91. Section 3 of the Act sets out the functions of the council which shall be :a.responsible for the preparations and publication of the reports to be known as the Kenya Law Reports, which shall contain judgments, rulings and opinions of the superior courts of record;b.undertake such other publications as in the opinion of the council are reasonably related to or connected with the preparation and publication of the Kenya Law Reports;c.perform any other functions conferred on the council or under the provisions of any other written law.

92. The composition of the council is:a.The Chief Justice;b.The Attorney General or his representative;c.A Judge of the Court of Appeal nominated by the Chief Justice;d.A Judge of the High Court nominated by the Chief Justice;e.A public officer being an advocate nominated by the Attorney General;f.Two advocates of not less than seven years standing nominated by the Law Society of Kenya;g.A dean of the Faculty of Law, University of Nairobi, or his representative;h.The Government Printer or his representative not below the rank of the Deputy Government Printer; and the Editor appointed under section 7. The Chief Justice shall be Chairperson of the Council.

93. Under section 8(1) of the Act, the Editor is responsible for the preparation and publication of the Kenya Law Reports and for such other publication as may be approved by the council under section 3.

94. Section 19 of the said Act provides that: “Every judge of the superior court of record shall as soon as practicable after delivering a judgment, ruling or an opinion cause to be furnished to the Editor a certified true copy of the judgment, ruling or opinion delivered by him.” This is mandatory and it is one of the parameters that the superior courts are measured by in the Performance Measurement Understanding evaluations which are undertaken on an annual basis for each and every judge. Such determinations or decisions must be submitted to the Kenyalaw.org within seven days of the delivery of the decision, whether it is a ruling or a judgment.

95. Under section 20 of the Act, returns are to be made by the Registrars of the superior courts on a monthly basis, to the Editor, providing him with a list of all judgments, rulings or opinions delivered by the High Court or the Court of Appeal as the case may be.

96. In addition, section 21 of the Act provides that “Kenya Law Reports shall be the official law reports of Kenya which may be cited in proceedings in all the courts of Kenya.”

97. From my analysis of the authorities and statutory provisions that I have cited above and which the applicant’s counsel found no time to refer to, the right of privacy is the right of a person to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the pubic in matters with which the public is not necessarily concerned.

98. Thus, an actionable invasion of the right to privacy is the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful invasion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. It also includes, usually, by statute, a constitutional right to be left alone from governmental intrusion into one’s private affairs, although the rights and the needs of the government to provide protection to society are balanced.

99. In Uranga v Federated Pubis, Inc, 138 Idaho 550 (2003), it was held that liability of invasion of intrusion must be based upon an intentional interference with the Plaintiff’s interest in solitude or seclusion, either as to his/her person or as to his/her private affairs or concerns. However, that invasion of privacy by intrusion does not depend upon just any publicity given to the person whose interest is invaded or to his/her affairs.

100. To be actionable, the prying or intrusion into the claimant’s private affairs must be of a type which is offensive to a reasonable person, except in the case of wrongful appropriation of one’s name or likeness where the act complained of need not be highly offensive to constitute invasion of privacy.

101. It is worth noting that public disclosure of private facts or affairs occur when a person gives publicity to a matter that concerns the private life of another but it must be a matter that would be highly offensive to a reasonable person and that it is not of legitimate public concern.

102. In Zieve v Hainston, 266 Ga APP 753 (Ga Ct App 2004), the court held that to establish a cause of action for invasion of privacy on the ground of public disclosure of private facts, the courts consider three elements namely:“(1)(1) the disclosure of private facts must be a public disclosure;(2)the facts disclosed must be private facts, and not public ones;(3)the matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities.”

103. Further, that in an action for invasion of privacy based on the alleged wrongful disclosure of private facts, the plaintiff/claimant must show that the disclosure complained of was actually public in nature. There is no liability when a defendant merely gives further publicity to information about the Plaintiff that is already public.

104. In a nutshell, in an action for a privacy right violations, a claimant must allege and prove the following elements:1. that there was an unwarranted invasion of the individual’s privacy;2. that there was intentional intrusion on his her private concerns;3. that publication was without the claimants’ consent, where such written consent is required; and4. that the claimant’s name or picture was used for trade or advertising purposes, where privacy invasion is alleged by publication of one’s name or likeness for trade and advertising purposes.

105. It is worth noting that in actions for privacy right violations, truth is not a defence and it is not necessary to allege or prove special damage. A suit for damages or an injunction where damages would not adequately redress an injury is sufficient.

106. In Auto Shanker case Rajagopal v State of Tamil Nadu AIR 1995(SC) 254, the Supreme Court of India discussing and determining the issue regarding the conflict between freedom of speech and expression and Right to privacy, the Supreme Court laid down that the right to privacy is subject to certain exceptions. The court stated that:“If anything, is other than “public records” or “court records” is published then it would definitely lead to infringement of privacy of other person. Moreover, publication against someone out of malicious intention would also amount to infringement of right to privacy of that person.”

107. In the instant case, the applicants alleged that no one requested for publication of the decision and that the publication has occasioned them reputational damage as reputable business persons and that their competitors have taken advantage of the publication of the decision.

108. Generally speaking, the Government cannot be liable for privacy intrusion by communicating public information, if no malice on the part of the government is pleaded and proved. For example, the government or public entity will not be liable for releasing information regarding a person’s criminal conviction to the public if the applicant:i.had discussed about the conviction in a letter to a newspaper;ii.criminal conviction record is public information;iii.was under probation supervision;iv.puts forth no evidence about confidential information release to the public.

109. I have considered the decision which was reported by the respondent via avis my analysis above. The main suit between the parties thereto is still pending before court. The application which gave rise to the published ruling was interlocutory in nature. It was heard in public and a ruling publicly pronounced. The applicants never sought for a private or in ‘camera’ hearing or delivery of the ruling by the learned Judge in private.

110. The applicants also never sought for any anonymity of the parties or parts of the ruling. They never asked the court to consider the matter private although the dispute is between private persons/natural and corporate. No minors are involved in the dispute. It is not a matter involving sexual offences or family disputes. It is a commercial dispute between and among entities.

111. True, nobody requested for publication but was the Judge duty bound by statute to send a certified copy of the ruling to the Editor National Council for Law Reporting for publication of the ruling and did the Editor National Council for Law Reporting err in publishing the decision? I do not think so.

112. The right to privacy as discussed above is one of the most cherished rights in our Constitution. However, privacy is not absolute or sacrosanct. It must be balanced with the other rights and needs of the other citizens and the person’s own actions in pursuing exposure or encouraging it.

113. There is no evidence placed before this court to show that the respondent required consent of the applicants herein to publish the decision received from the judge. There is also no evidence to show that the respondent had malice in publishing the ruling. No particulars of malice were stated or disclosed by the applicants.

114. The hearing of the application giving rise to the ruling having been done in public, I find that the respondent only published information or the decision which was already public information, information which the public had a legitimate right to access.

115. For that reason alone, I find that there was no unwarranted invasion of the applicants’ privacy. I further find that there was no intentional intrusion on the applicants’ private concerns and that no consent, whether written or oral was required for the respondent to publish the decision which publication was in their statutory mandate.

116. I say so because the applicants have further not demonstrated to this court by way of evidence that the respondent was under any duty to verify or edit and to edit or verify what in particular, from the ruling of the learned judge, before deciding whether to publish it or not. This court has also not been told that the decision as published had inaccuracies or errors committed by the respondent.

117. Neither is there evidence that the respondent was under any legal duty to edit the decision upon receiving it from the learned judge who is the author thereof. I have also not been told that the respondent should have rejected the decision and or sought for further permission from the Judge before publishing it.

118. Where a party has publicly participated in a public hearing and decision making and in a case which does not fall in the categories of cases where there is need for redaction of some material or anonymization, then that person cannot turn around and claim that their privacy has been violated by the publication of the court decision. This is so because the facts disclosed in the ruling publicized are public facts and there is absolutely no scintilla of evidence to show that those facts in the ruling would be offensive and objectionable to a reasonable person of ordinary sensibilities.

119. Furthermore, if the applicants herein considered their case to be so private in nature and wanted the public including their customers and or competitors not to know that the applicants were involved in any of litigation history with other persons, nothing prevented the Applicants from applying to the National Council for Law Reporting, the respondent herein for anonymization of the part of the ruling. Failure to do so, the respondent cannot be directed by this court to pull down a law report whose accuracy, as verbatim public information of court decisions has not been challenged. This court has not been shown what reputational damage the applicant has or stands to suffer by the ruling following its publication by the National Council for Law Reporting.

120. I agree with the respondent in their contention that the state is the major guarantor of human rights and freedoms and that to injunct the respondent from disseminating court decisions to the public, without any proof of damage or injury that such dissemination would cause to an individual or public, is tantamount to curtailing the public’s right to access information as guaranteed in article 35 of the Constitution and further curtailing the growth of jurisprudence in the country. In addition, I find that curtailing the publication of court decisions would erode the public’s confidence in the courts.

121. In an article -“Publication of court order. No violation of Right to privacy: Indian Kanoon opposes Plea in Kerala HC to remove personal details from Reported Judgment, it is stated that where the law allows the publication of matters which are public records including court records and orders of courts or tribunals, court records are recognized world over to be public records hence in some jurisdictions, no permission is required to publish court cases.

122. For example, section 52(1)(q)(iv) of the Indian Copyright Act provides that publication of court judgments does not constitute an infringement of copyright. This is because judgments and court orders are exempted from copyright protection and are in the public domain, the instances of compiling them off as original works are common place. Only the court can expressly bar the publication of a case or where the law bars such publication. This position was well stated by the Supreme Court of India in Rajagopal v State of TN 1995 AIR 264, 1994 SCC (6) 632 decided on 7. 10. 1994 where the Supreme Court defined the scope of the Right to Privacy, the court held that publication of court records will not constitute any violation of the right to privacy. It held that:“The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [article 19(2) an exception must be carved out to this rule, viz, a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicized in press/media.

123. In Kenya, section 2 of the Copyright Act excludes statutes or written laws and judicial decisions from being literary works that can be subjected to copyright. In other words, one cannot claim that they own a statute or a court decision and seek for its protection under the Copyright law.

124. Thus, the right to privacy must be balanced with the right to access information held by the State. Access to public legal information is the property for the common good and therefore unwarranted restriction amounts to an attack on the development of jurisprudence in the country. Further, it would muzzle the respondent’s statutory mandate if parties who elect to participate in public trials turned out to sue the National Council for Law Reporting or even the superior court judges who are also mandated by law to submit their decisions for publication by the respondent herein.

125. The National Council for Law Reporting cannot therefore modify or remove particulars from a case except in limited cases, involving children, sexual offences or in family matters such as divorce or adoption or where an application for anonymization is made and allowed or where the court has given such directions in a matter where, publicizing one’s private affairs without a legitimate public concern would violate that person’s right to be free from unwarranted appropriation of one’s personality.

126. It is further not lost to this court that article 50(1) of the Constitution guarantees every person the right to a fair hearing and to have any dispute that can be resolved by application of the law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

127. Accordingly, since the National Council for Law Reporting privacy policy is in place where it redacts cases in line with the law for redaction and anonymization, the applicant should have approached the respondent to invoke those provisions and not to seek to injunct the respondent from publishing a ruling submitted to it by the judge who was the author thereof, in compliance with the law.

128. I must mention that even this decision must be submitted to the respondent herein for publication within the next seven days. Should this court therefore be told that to do so would violate the applicants’ right to privacy? It would be such a dangerous precedent setting for the superior court judges to be looking on their shoulders to see who is watching them and who would be reading their decisions before making the decisions themselves and deciding which decisions should be published and which ones should not, which is a negation of the principle of decisional independence of Judges.

129. I agree with Chitembwe J in Emmanuel Mambo Oduory v Nationsal Council for Law Reporting & 2 others [2021] eKLR where the learned judge correctly observed that:“In my humble view, the goal of publication of court decisions is two-fold: (1) to inform society about interpretation and application of the law in Kenyan courts; and (2) to ensure publicity, transparency and openness of the courts such that the public’s right to freely receive and disseminate information which is part of the right to self-expression as protected... Under the Constitution is not curtailed. These two aspects are important in a constitutional democracy. In addition, the principle of legal certainty which is a sine qua non of constitutional democracy, makes the duty of the state to ensure that courts work in a predictable manner. Further, the principle of legal uniformity implies that court decisions adopted by different courts or in cases of similar subject matter or causes of action will carry identical legal interpretation. Publicity of court decisions is, in my humble view, an instrument of social control and increases trust in our courts. This is not to say that publication is absolute. That is why we have the Data Protection Act and other laws like the Children’s Act which provide for anonymization and redaction. Where restrictions (limitations) are provided in law, the limitation will be weighed and evaluated in line with the constitutional dictates. Thus, publication of court/judicial decisions is in compliance with the freedom to receive/access information...”

130. Furthermore, as everywhere in society, also to the judiciary, the internet has brought a revolution. Apart from the growing possibilities for on-line proceedings, by offering the opportunity to publish vast quantities of court decisions on-line, the judiciary can increase its visibility and transparency substantially.

131. No doubt, published court decisions are important base materials for legal professionals, academic researchers, journalists and private companies in the legal information market. In addition, it would be a violation of the right to access justice (as guaranteed under Article 48 of the Constitution) for those persons who cannot afford private legal representation if they were curtailed from accessing court decisions and the only way to access those court decisions is by way of publication. Past court decisions assist even the public spirited litigants

132. Mentioning the Data Protection Act of 2019, for example, the Act was enacted to give effect to the provision of article 31(c) and (d) of the Constitution which guarantees every person the right not to have information relating to the family or private affairs unnecessarily required or revealed and the right not to have the privacy of their communication infringed.

133. The Act also creates offences against persons or data controllers who fail to comply with various provisions of the Act.

134. In compliance with the Data Protection Act, from my deep research, I found that the respondent has developed anonymization guidelines which the applicants herein should have taken advantage of and applied to the respondent, with acceptable reasons of course, to anonymize the decision and only when the respondent unreasonably declines the request, would the applicants seek intervention of this court. No such request was made by the applicants as required under section 52(1)(b) of the Data Protection Act.

135. Mativo J (as he then was) in Kenya human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR stated as follows and I agree, concerning data protection:“Data protection is an aspect of safeguarding a person’s right to privacy. It provides for the legal protection of a person in instances where such a person’s personal particulars (information) is being processed by another person or institution (the data user).Thus, the public’s right to information, supported by the freedom of information, places limits on the right to respect to one’s private life in certain circumstances. This is because the expectation of privacy is reduced in certain cases…Only one question arises namely, the balancing of the rights at issue. It must, therefore, be decided whether the public’s right to information can justify dissemination of a photograph taken without authorization.” See Aubry Editions Vice Versa Inc [1998] 1 SCR 59 – which was a claim by an artist to publish photographs without the consent of the subject, a 17-year old, in a public place.

136. For all the above reasons, I find this originating motion totally misguided, frivolous and vexatious.

137. I find that the applicants failed to discharge the burden of proving that their privacy was violated by the respondent National Council for Law Reporting’s publication of a court ruling in a matter which was heard publicly and the decision rendered publicly by the Hon Judge, which decision or case does not fall in any of the categories of cases requiring redaction or anonymization.

138. The originating motion dated November 1, 2021 is hereby found to be devoid of any merit on all fours. It is dismissed. I order that each party shall bear their own costs of this case.

139. File closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 1STDAY OF NOVEMBER, 2022R.E. ABURILIJUDGE