Why Court has thrown out WhatsApp privacy case

The High Court has thrown out a woman’s privacy breach case against her niece.

Justice Lawrence Mugambi said Elizabeth Waithera had jumped the gun by filing a case against Angela Chemeli as she had not raised the issue before the data protection commissioner or the Directorate of Criminal Investigations (DCI), or in the succession court where the information was used.

On her end, Chemeli told the court that her aunt allowed her to mirror her WhatsApp messages on her laptop but failed to log out while they were in Namibia.

She said she discovered that Waithera was mentioning her name, and when she scrolled, she discovered a plot to disinherit her and her sister of their late mother’s wealth, including a car.

Chemeli said she decided to use Waithera’s texts in the succession case.

Justice Mugambi ruled it was for the Family Court to decide whether the messages could be used as evidence or not.

“The Petition as framed is a collateral attack directed at the succession proceedings, which, if allowed, has the potential to undermine the finality of that decision, yet the proper way to challenge such a decision is by appeal or review,” said Justice Mugambi.

In her case, Waithera accused her niece Chemeli of hacking into her mobile phone and using data collected therein against her.

Chemeli’s mother, Jane Wambui, is Waithera’s sister.

Court documents filed by Waithera indicate that Chemeli objected to having her aunt and uncle granted powers to manage her late mother’s estate.

The aunt claimed that the differences over succession started in 2021 and have been pending before the Family Court at Milimani.

Waithera stated that she lives in Namibia, but sometimes, between June and July 2021, she came to Kenya to sort out some family business. According to her, the business included taking some documents from a house where Chemeli and her sibling live, but Chemeli denied her access to the house.

Waithera claimed she noticed that her mobile phone started behaving unusually.

“It would occasionally reboot unprompted,” she says, adding that whenever she made calls, it produced echo sounds.

 “Apprehensive that someone might actually be intercepting and or interfering with my communication and or mobile device, I decided to switch off the line and register another one to utilise in private communication.”

Further, Waithera claimed that she noticed that Chemeli was in possession of her personal information that she had not shared with anyone.

“Incidentally, this is the period within which I was in Kenya and had suspected that my device and or registered number had been tampered with and my communication was being intercepted. It is apparent that the respondent intercepted all my chats, including my intimate conversations, which left me embarrassed and stripped of dignity,” she claimed.

According to Waithera, she initially suspected that it was her lawyer who was giving the information to her niece.

Nevertheless, Waithera stated that her lawyer informed her that, in March this year, Chemeli filed an application before the Family Court and attached screenshots of WhatsApp conversations from June to July 2021.

Waithera claimed that Chemeli is like a daughter to her and she feels that her niece has breached her privacy and trust.

She argues that the evidence and the exhibits Chemeli produced in court should be classified as illegally obtained evidence.

Waithera wanted the court to declare that her niece had infringed her dignity and privacy. At the same time, she is asking the court to order her niece to pay damages for the alleged breach.

Further, she was also asking the court to block her niece from using any information that is at the heart of the dispute.

In the succession case, Waithera and her brother George Gachoka had sought authority to manage Wambui’s estate.

But Chemeli opposed the same.  In her opposition, Chemeli stated that she is Wambui’s eldest daughter.

According to her, Waithera and Gachoka could not be beneficiaries as her late mother had two children who are alive.