The High Court in Kiambu has suspended enforcement of orders issued by the Kadhi’s Court in Nairobi after finding that they posed a real risk to the privacy of individuals who were not parties to the proceedings.
In the ruling delivered in a constitutional petition, the court held that the orders in question, which required the production of CCTV footage, hotel booking records, and travel information, could expose third parties’ personal data without affording them an opportunity to be heard.
The case arose from a dispute before the Kadhi’s Court involving a matrimonial matter, in which orders were issued compelling several institutions to produce records.
High Court on Kadhi Orders
The High Court heard that the scope of those orders was broad and did not specify limits on dates or data, raising concerns about the potential exposure of private information belonging to persons outside the case.
The petitioner, who was not a party to the Kadhi’s Court proceedings, moved to the High Court, arguing that the orders threatened his constitutional rights, including the right to privacy and a fair hearing.
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He maintained that the collection and possible disclosure of such data would take place without his participation or consent.
However, the application was opposed on grounds that the petition was an improper attempt to challenge lawful orders issued by a competent court.
It was argued that any grievances should have been pursued through the appellate process, particularly in the High Court’s Family Division, where related proceedings had already been filed.
But the court rejected that argument, finding that the petition raised a legitimate constitutional question.
It noted that the petitioner was not a party to any appeal before the Family Division and could not automatically benefit from or be bound by proceedings in which he was not involved.
In its determination, the court said it has the constitutional mandate to protect fundamental rights, including cases where individuals allege violations arising from decisions made in lower courts.
It stated that the existence of parallel proceedings does not deprive a person of the right to approach the court when their individual rights are directly threatened.
The judge further found that the petition was not frivolous or an abuse of the court process.
Instead, it raised an arguable issue as to whether a non-party mentioned in evidence before another court could have their personal data exposed through production orders issued without notice or a hearing.
The court observed that the nature of the data sought, including CCTV footage and booking records, carried a high risk of revealing private details.
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It concluded that there was a real danger of prejudice if the orders were enforced without safeguards.
“There is a real danger that the petitioner’s right to privacy will be infringed if the orders are implemented,” the court added.
On that basis, the court held that the petitioner had established a prima facie case warranting protection pending the full hearing of the petition.
“The petitioner has established a prima facie case with a likelihood of success,” the court said.
Orders Limited to Protection of Non-Parties
Consequently, the High Court issued a conservatory order suspending the enforcement of the specific Kadhi’s Court directive requiring production of records.
The suspension applies strictly to the collection, processing or disclosure of data that relates to the petitioner or any other person who was not a party to the Kadhi’s Court case.
The court clarified that such material cannot be accessed or used unless affected persons are given a chance to be heard or further directions are issued.
At the same time, the court declined to strike out the petition, dismissing an application that sought to terminate the case at an early stage.
The judge noted that striking out is a drastic remedy that should only be applied in the clearest cases where a claim has no chance of success.
In this instance, the court ruled that the petition was not hopeless and should proceed to a full hearing.
