The Preamble of the Data Protection Act 2019, states that it’s an Act of Parliament to give effect to Article 31(C) and (D) of the Constitution of Kenya 2010. The said Article provides for the right against the infringement of a person’s right to the privacy of the information relating to their family or private affairs and the privacy of communications. Simply put, it is the right to be let alone, the right of a person to be free from unwarranted publicity. The right to live without unwarranted interference by the public in matters with which the public was not necessarily concerned.
Prior to the enactment of the Data Act, the operationalizing statute; cases on the infringements of the right to privacy were a preserve of the High Court of Kenya, i.e. the human rights and judicial review division. After the enactment, the jurisdiction of the High Court was relegated to an Appellate one.
The firm did put the Act to test on account of jurisdiction in the Constitutional Petition No. E468 of 2021 between Abdinur Kassim & Luqman Hussein v Joyce Njoki Ngigi. The firm was acting for the respondent who had been sued for breaching the petitioners’ right to privacy by publishing their photographs in social media platforms without consent.
The firm’s objection to the jurisdiction of the High Court was centered on the doctrine of exhaustion, a doctrine which is anchored on Article 159. It was the firm’s contention that there exists a defined statutory mechanism for handling privacy matters which ought to be strictly, and in the first instance, adhered to and that the High Court only exercises appellate jurisdiction. It was the firm’s assertion that the doctrine of exhaustion is of esteemed juridical lineage in Kenya and allows for special subject matter expertise that then allows for the growth of jurisprudence.
The court uphold our objection and aptly stated that, ‘The provisions of the Data Act is a complete bar to the jurisdiction of this Court’. It did therefore found that the privacy dispute fell within the four corners of the Data Act. The Petition was dismissed with costs to the respondent.
To surmise, the High Court as was held by Justice A. Mrima does not have the jurisdiction to deal with matters falling under the Data Act as a court of first instance. However, where a petitioner is raising constitutional law questions, the High Court has unlimited jurisdiction. Additionally, where a Petitioner proves that the alternative judicial remedy does not serve the values espoused in the Constitution or where the alternative forum does not offer an adequate audience, the High Court should assume jurisdiction.