Complaints
Gichuki & 4 others v Waigwa [2022] KEHC12253 (KLR) (Civ) (5 August 2022) (Ruling)
Attachments:
Summary
On July 27, 2022, the defendant tweeted innuendos and tweets accusing the plaintiffs of sexual harassment. This prompted several Kenyans on Twitter (KOT) to maliciously attack their law firm and directly discredit the plaintiffs' characters, alleging that some of the plaintiffs sexually harassed employees, among other things. On July 28, 2022, the plaintiffs filed a motion seeking, among other things, an injunction to prevent the defendant, his followers on Twitter and any other social media platform, or agents from publishing and or causing to be published, tweeted, retweeted, posted, or reposted all articles referring to the plaintiffs and the law firm Wamae & Allen Advocates, in particular. The tweets related to the complaint filed against him with the Office of the Data Protection Commissioner (ODPC) and the pending complaint with the Advocates Disciplinary Tribunal for professional misconduct were presented in court as evidence. The defendant was ordered by the court to remove all innuendos and tweets alleging sexual harassment by the plaintiffs that were posted on July 27, 2022, and all subsequent dates.
Analysis
According to Article 33(3) of Kenya's 2010 Constitution, exercising freedom of expression is subject to respect for the rights and reputation of others. In this case, the plaintiffs claimed that the defendant had shared tweets on Twitter that could jeopardize their reputation and that of their law firm. The defendant's tweets from July 27th, 2022 were retweeted and posted on various social media platforms, and this was interpreted as a direct libelous attack on the plaintiffs in response to the data breach complaint filed against him. In the absence of any evidence to the contrary, a cursory examination of those tweets appears to indicate that the plaintiffs are guilty of both sexual harassment and professional misconduct. The plaintiff filed a complaint at the Office of the Data Protection Commissioner against the defendant for obtaining confidential information in violation of Sections 72(3) and 72(4) of the Data Protection Act. The sections state that a data processor commits an offense if he or she discloses personal information without the data controller's consent. This is considered an offense of unlawful disclosure of personal data, and the general penalty provided in Section 73 is a fine of not more than three million shillings or imprisonment for not more than ten years, or to both. In this case, where the tweets were being tweeted and retweeted on social media by individuals other than the defendant, the court deemed it necessary for the defendant to remove the tweets because the issue could not be resolved through conviction or monetary compensation. As the plaintiffs and their law firm would suffer irreparable harm, such as loss of business and reputation, an injunction was issued, and the defendant has since deleted all tweets. The ruling of the case is available on the Kenya Law Reports website.