In a recent judgment in the case of T O. S v Maseno University & 3 others [2016] eKLR, the High Court ruled that the publication or use of the images of an individual without his consent violates that person’s right to privacy. The Petitioner, in another suit, had sued the 4th Respondent together with Riley Falcony Security Services Limited and the Public Procurement Oversight Authority (PPOA) over the security tender in respect to Maseno University, the 1st Respondent. The Petitioner averred that among the documents exhibited by the 4th Respondent in that suit included the medical records containing the names and photographs of his wife and children who were minors. It also contained work details of the Petitioner’s wife and their place of residence.

He alleged that the documents were private and confidential and they did not have any connection with the suit at all and were only meant to embarrass him and his family. He therefore contended that by such disclosures he had suffered psychologically and that the safety of his family’s confidential documents had been contravened. His claim was that the constitutional right to privacy of his family had been violated and hence sought inter alia damages and compensation for the injury caused.
In this case, there were 3 issues for determination namely:
1) What was the scope of the right to privacy?
2) Factors considered when determining whether the right to privacy was violated in line with the information in question.
3) Whether the publication or use of images of an individual without his consent violated that person’s right to privacy?
According to the court, the law is clear that publication or use of the images of an individual without his consent violates that person’s right to privacy because a person’s life is a restricted realm in which only that individual has the power of determining whether another may enter, and if so, when and for how long and under what conditions. However, the right to privacy is not absolute. The court states that as a common law right of personality, the right to privacy is necessarily limited by the legitimate interests of others and the public interest. Such interests would arise in situations where it becomes important to expose an individual’s criminality or misconduct in order to protect the public.
In the court’s view, there was wrongful invasion of the minors’ right to privacy. The 4th Respondent went ahead to expose photographs, names, and place of residence and personal details of minors who were not parties to the suit without consent. That was in clear violation of section 19 of the Children Act that guaranteed a child’s right to privacy. The exposure of the document was intentional. However, the court held that the Petitioner had failed to demonstrate how the Respondents were responsible for the leakage of the material document. According to the court, there was possible that the document originated from the offices of the 1st Respondent but there was no evidence to demonstrate that. The 4th Respondent had also not stated where he obtained the document. It could have been obtained from anywhere. The Petitioner therefore had not proved the involvement of the 1st, 2nd and 3rd Respondents in the leakage of the information and they could therefore not be held liable.