Anne Waiguru Nomination Cabinet Secretary Uhuru Kenyatta

The High Court has recently made a ruling in the case of Anne Waiguru v. Google Inc & 2 others [2014] eKLR in which Cabinet Secretary Anne Waiguru has sued Google Kenya and its mother company Google Incorporated. A copy of the ruling is available here.

The Kenyan Daily POST is a popular weblog available online at: http://www.kenyan-post.com/ and enjoys a large following of over 263,800 accounts on facebook and 36,000 on twitter through the handle @TheKenyanPost. Waiguru claims that on or about the 14th of April 2014, the Daily Post published an article titled “CONFIRMED: It is Anne Waiguru who wanted to sleep with Janet’s Mbugua’s Boyfriend Gor Samelango” and included her photo prominently in the post. Waiguru claims that the said post was defamatory of her character and further claims that having been aggrieved by the offending publication, she has a right to seek legal redress but she cannot exercise that right without the information held by Google Inc. the 1st Respondent and Google Kenya Ltd, regarding the owners, authors and publishers of the Daily Post.

Although the Daily Post has since taken down the offending article from its site, the article appears to have been reproduced and made available here. The article alleges that Anne Waiguru influenced the firing of one Gor Semelang’o as Chairperson of the Youth Enterprise Development Fund because Gor allegedly rebuffed Waiguru’s sexual advances during a government retreat in Mombasa in March 2014. In this connection the article reads:

“When they came back to Nairobi, Waiguru who was embarrassed by the incident started planning how to kick out the “energetic young man” from being the chair of the youth fund.
During a meeting in Harambee House this month, Waiguru started to inquire about Gor Semelango’s ethnicity and even asked who appointed him to such a lucrative post.
It is alleged that it is not President Uhuru Kenyatta who sacked Semalango but it is Anne Waiguru and some senior State House officials.”

In Waiguru’s Petition before the Constitutional and Human Rights Division of the High Court, she makes the following prayers:

“(1) Pending the hearing and determination of this Petition, conservatory orders be issued in terms of the Notice of Motion filed herewith.

(2) A declaration be issued to declare that the Respondents’ conduct infringed the Petitioner’s rights under Articles 28, 35, 48 and 50 of the Constitution.

(3) The Honourable Court be pleased to uphold the Petitioner’s rights by issuing an order compelling the Respondents to disclose the following information to the Petitioner within fourteen (14) days of such order; The identity/identities including name, address, telephone number, verification email address, access logs, any sign-up IP address, account status of persons(s) who own, control, publish or post in URL http://www.kenyan-post.com> site known titled “Daily post”.

(4) The Honourable Court be pleased to issue an order directed to the Respondents to remove or cause to be removed and permanently delete all defamatory statements concerning the Petitioner in URL http://www.kenyan-post.com site known as/and titled “Daily post” and permanently restraining the Respondents from allowing the google.com and google.co.ke returning search results from the said the “Daily Post” on the offending materials concerning the Petitioner.

(5) The Costs of the Petition be awarded to the Petitioner.”

The matter up for determination by court is an application filed by Google Kenya Ltd seeking that it be struck out of the Petition. Google Kenya bases its application on three main grounds:
1) Waiguru does not have a cause of action against Google Kenya.
2) Google Kenya is not in a position to comply with Prayers 3 and 4 of the Petition requiring it to disclose details of the identity of the internet site titled “Daily Post” as it does not have access to that information.
3) The Petition does not disclose any violation of the Petitioner’s fundamental rights and freedoms by the 2nd Respondent.

In light of the three grounds above, the core of Google Kenya’s application is that Google Inc and Google Kenya are separate legal entities and that the latter is a stranger to Waiguru’s Petition. Google Kenya’s argument is that the blogging platform that hosts the Daily Post is “Blogger” (www.blogger.com) which is owned and operated by Google Inc. and not Google Kenya therefore the latter does not have the information sought by Waiguru as Google Kenya does not own or operate the platform that hosts the offending website or the website itself. In this connection, Google Kenya contends that Google Inc had been in touch with Waiguru’s Advocates and had informed them of the process Waiguru should follow in identifying the owners and operators of the website. Instead of following that procedure, Google Kenya claims that Waiguru chose to file the Petition in an effort to force Google Kenya to reveal information it does not have and therefore Waiguru’s petition is an abuse of the court process.

The crux of the present joinder dispute is thus the relationship between Google Inc and Google Kenya. However both parties agree that Google Kenya exists and operates in Kenya to offer marketing and service support for services provided by other Google entities and receives its funding from Google Ireland Ltd (a party that surprisingly was not joined in the proceedings).

In arriving at its ruling, the court makes the following finding:

All that is before me at this stage of proceedings therefore are confutations on the operation of the Respondent. I do not yet know whether in its operations the 2nd Respondent [Google Kenya] had knowledge of the offensive publication against the Petitioner [Waiguru] or it could have, for instance, prevented the publication of the offensive material or whether it had the ability to access the publication of the offensive material.
(….)
the issue of responsibility of a publication made on the google website is a novel one in Kenya so far as I know. It is therefore apparent from the above facts that the resolution of the dispute before me requires determination of complex issues of law in a proper factual context. Given the significance and complexity of the issue as well as the fact that it concerns a developing area of the law, striking out the 2nd Respondent at this stage of the proceedings would be clearly inappropriate. In my view, it is necessary to consider the evidence available and facts in their totality at the trial in light of the fact of novelty of the issue and also given the conflicting foreign authorities relied upon by the Parties. It would also be inappropriate to consider the liability or otherwise of the 2nd Respondent at his interlocutory stage. I am thus of the view that the involvement of the 2nd Respondent in this Petition is necessary as the relationship between the two Respondents [Google Inc and Google Kenya respectively] forms the background of the Petition.”

It is the considered view of this blogger that despite the nexus between Google Kenya and other Google entities outside Kenya, Article 35 (1) of the Constitution guarantees Waiguru the right of access to information held by another person (both natural and juristic) which is required for the exercise or protection of any right or fundamental freedom. In this regard, the publication of the Daily Post article in question is clearly a violation of Waiguru’s rights to privacy and human dignity.

As this case proceeds to full hearing and determination, this blogger will be keenly following the developments.