Automated Summary
Key Facts
Joseph Kiama Kiragu (Petitioner) alleges Chuka University (Respondent) used his image without consent, infringing his constitutional rights to privacy (Article 28), dignity (Article 31(c)), and publicity (Article 40(5)). The Respondent's preliminary objection, arguing the petition failed to meet constitutional thresholds and lacked jurisdiction, was dismissed. The court found the petition complied with procedural requirements and awarded costs to the Petitioner.
Issues
- Whether the Petitioner was required to exhaust alternative dispute resolution mechanisms (e.g., Civil Procedure Act, Data Protection Act) before filing the constitutional petition, as argued by the Respondent citing Gabriel Mutava v Kenya Ports Authority and Leonard Otieno v Airtel Kenya Limited, versus the Petitioner's claim that no such statutory procedure exists for constitutional rights violations.
- Who should bear the costs of the preliminary objection, with the Court concluding that costs follow the event and were awarded to the Petitioner as the preliminary objection lacked merit, referencing the principle that unsuccessful preliminary objections result in costs being awarded to the opposing party.
- Whether the Petition meets the threshold of a Constitutional Petition under the Mutunga Rules, specifically requiring reasonable precision in pleading constitutional violations (Articles 28, 31, 40) and injury caused, as outlined in Anarita Karimi Njeru v Republic and Mumo Matemo v Trusted Society of Human Rights Alliance.
- Whether the High Court has jurisdiction to entertain, hear, and determine the matter under Article 165(3)(b) of the Constitution, which grants the High Court the authority to determine violations of rights in the Bill of Rights, despite the Respondent's argument that jurisdiction is contingent on meeting constitutional petition thresholds.
Holdings
- The court dismissed the preliminary objection with costs, ruling that the petitioner is entitled to recover costs as the objection lacked merit and was not a pure point of law.
- The court rejected the preliminary objection that the petitioner should have used alternative dispute resolution mechanisms, noting that constitutional litigation is permissible when statutory remedies fail and that the respondent did not demonstrate a mandatory alternative process.
- The court determined that the petition meets the threshold of a constitutional petition as it complies with the Mutunga Rules, particularly Rule 10, by clearly stating the constitutional provisions violated (Articles 28, 31, and 40) and the nature of the injury.
- The court affirmed it has jurisdiction to entertain the matter under Article 165(3)(b) of the Constitution, which grants the High Court authority to determine whether a right or fundamental freedom in the Bill of Rights has been violated.
Remedies
The preliminary objection is dismissed with costs awarded to the Petitioner as it lacks merit.
Legal Principles
- The court determined the Petition met the constitutional threshold under Rule 10 of the Mutunga Rules and affirmed its jurisdiction under Article 165(3)(b) of the Constitution to adjudicate constitutional matters involving alleged violations of rights.
- The court applied the principle that costs follow the event, awarding the costs of the preliminary objection to the Petitioner as the objection was dismissed for lack of merit.
Precedent Name
- Royal Media Services Ltd v Attorney General & 6 Others
- Anarita Karimi Njeru v Republic
- Joel Kendwiyo v. District Criminal Investigations Officer Nandi & 4 Others
- Mukhisa Biscuits Manufacturing Ltd v. West End Distributors
- Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority
- Independent Electoral and Boundaries Commission v. Jane Cheperemger & 2 Others
- Leonard Otieno v Airtel Kenya Limited
- Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others
- National Assembly v James Njenga Karume
Cited Statute
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
- Constitution of Kenya
- Data Protection Act
- Civil Procedure Act
Judge Name
L.W. Gitari
Passage Text
- Furthermore challenge of applauding for want of form should not be entertained to deny a party justice. The court should determine the matter on merits.
- In light of the above requirement and having perused the instant petition that is before this Court, it is my view that the instant petition as presented has complied with Rules 10 of the Mutunga Rules. As such, the issue raised on the preliminary objection as to whether the petition meets the threshold of a constitutional petition is not only unmerited but is also all short of meeting the threshold of a pure point of law that is likely to dispose of the Petition.
- Having found that the Petition as presented meets the threshold of a constitutional petition under the Mutunga Rules and by dint of the Article 165(3)(b) of the Constitution, there is no doubt that this Court is properly clothed with the jurisdiction to entertain, hear, and determine the Petitioner's petition.