Jemimah Wambui Ikere & another v Standard Group Limited & another [2019] KECA 244 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a parent's informed consent to media publication of a child's image is a complete defence to a privacy claim.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court failed to balance the public interest in publication against the minors' independent rights to character, wellbeing, innocence and integrity under the Children Act
- 2.Whether the trial court failed to appreciate the facts and to apply international treaties on children's rights
- 3.Whether the trial court erred in sustaining the defence of the minors' mother's consent to the publications
- 4.Whether the trial court failed to consider the minors' right not to be subjected to inhuman and degrading treatment
- 5.Whether the trial court failed to consider the appellants' submissions
Key legal issues
#Defence of parental consent to publication of minors' images
The consent given by the minors' mother, Felister Wanjiru, was voluntary, informed and unassailable, given in the interests of the family's safety amid leaflets targeting the family; it validly sustained the respondents' defence.
The court found the mother spoke to the press voluntarily, with depth of information only she could supply; photographs were taken at her home without forced entry; she never objected during her lifetime; and the appellants could not credibly explain six years of inaction. Consent was consistent with the best interests of the child, since a public dissociation from the deceased's lifestyle protected the minors from being targeted.
Scope of the right to privacy under the repealed Constitution
Section 75 of the repealed Constitution protected only the privacy of home and property, not privacy of the person; the petitions, premised on that section, could not be sustained via the Children Act, which is not a constitutional framework.
The court held that although section 19 of the Children Act protects a child's privacy, that statute is not a constitutional instrument, so the petitions could not be sustained on it without anchoring on the repealed Constitution. The trial court nevertheless properly considered international instruments and the best-interests principle, and the Court of Appeal found no misdirection in its treatment of them.
Inhuman and degrading treatment and evidential nexus
No evidence showed the minors had anything to do with the deceased's lifestyle or that stigma flowed from the publications; the auxiliary claim of inhuman and degrading treatment was properly rejected.
The school incident was attributable to a teacher's personal knowledge of the children; the school transfer was for fees reasons; and paternity gaps did not defeat standing since parental responsibility could be presumed under section 23 of the Children Act. The court affirmed that once the primary privacy claim failed, the auxiliary claim necessarily failed.
Balancing public interest in publication against children's rights
Publication of the killing of a most-wanted criminal was in the public interest, and the trial court properly balanced this with the minors' interests; no lack of balancing was shown.
Relying on Kenya Bus Services and the Ugandan Obbo case, the court held that enforcement of rights must be balanced against public interest and policy. The circumstances, including leaflets targeting the family, made the mother's public dissociation from the deceased's lifestyle a measure in the children's best interests, so the publication including their images was justified.
Legal principles established
#- On a first appeal, the Court of Appeal must re-appraise the evidence and draw its own inferences of fact, an appeal from the High Court being by way of retrial, and is not bound by the trial court's findings of fact where it misapprehended the facts or misapplied the law.
- A parent or guardian's voluntary, informed consent to media publication of a child's image, given in the child's best interests, is a complete defence to a constitutional claim of infringement of the child's right to privacy.
- Parental responsibility under section 23 of the Children Act may be presumed for children living with the deceased's household, giving them standing to seek redress for alleged violations notwithstanding absence of biological lineage.
- A claim of inhuman and degrading treatment auxiliary to a failed privacy claim fails with it where the facts relied upon are the same.
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment re-appraising the evidence as a first appeal, affirming the trial court's findings on consent, public interest, limitation of the repealed Constitution's privacy protection, and the absence of inhuman and degrading treatment; dismissed the appeal with each party bearing own costs. Signed under Rule 32(3) because Waki, JA had retired.
Since Kiage, JA is in agreement, he upshot of the above is that I find no merit in the appeal. It is accordingly dismissed.p. 7
Wrote the judgment
Concurred separately, agreeing the appeal should be dismissed and Lenaola J's judgment affirmed, holding that the mother's consent was a complete and unassailable defence and that once the primary privacy complaint failed the auxiliary claims had to fail.
Such consent as given in the case provided a complete and unassailable defence to the petitions.p. 7
- On appeal from
- High Court of Kenya, Constitutional and Human Rights Division at Nairobi
- Petition No. 466 of 2012 (as consolidated with Petition No. 416 of 2013)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a) CAR); appeal from the High Court's constitutional petition judgment
- Consolidated with
- Petition No. 416 of 2013 (referred to in the judgment as Petition Number 416 of 2012)
Relief refused
#Declarations that the minors' rights to privacy, dignity and freedom from inhuman and degrading treatment were infringed
The consent of the minors' mother was well informed and unassailable; section 75 of the repealed Constitution did not protect personal privacy; no nexus between the publications and any alleged stigma
General, punitive and exemplary damages for each of the six minors
The petitions failed on the merits
Injunction restraining further publication of the minors' images and a directed written apology
The petitions failed; the publications were in the public interest and consented to
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Since Kiage, JA is in agreement, he upshot of the above is that I find no merit in the appeal. It is accordingly dismissed. Due to the nature of the litigation, I order each party to bear own costs.
I, too, am of the view that the High Court judgment is for affirming and must be left undisturbed. Accordingly, the final orders on this appeal shall be as proposed by Nambuye JA.
Such consent as given in the case provided a complete and unassailable defence to the petitions.
Any limitation on the enjoyment of a right should not only be reasonable but must also be justifiable in an open and democratic society based on human dignity, equality and freedom.
I am not bound to follow the trial court's findings of fact if it appears to me that the trial court clearly failed on some point to take account of particular circumstances; or misapprehended the facts or misapplied the law to the facts and thereby arrived at a wrong conclusion on the matter.
Issues in the judgment
#The coram lists three judges (Waki, Nambuye & Kiage, JJ.A.) but the judgment states Waki, JA had ceased to hold office upon retirement, and the judgment was signed under Rule 32(3) by Nambuye, JA; the panel composition at delivery is ambiguous.
The consolidated petition number is inconsistently given as 'Petition Number 416 of 2012' in the body but 'Petition No. 416 of 2013' in the title.
The trial judgment date is given as 19th June 2015 in the title but as 29th June 2015 in the body of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jemimah Wambui Ikere & another v Standard Group Limited & another [2019] KECA 244 (KLR)", Case Analysis (2019). Civil Appeal No. 310 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/244/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.