WhatsApp chats presented in court.
Police and prosecutors are increasingly finding themselves entangled in disputes flowing from WhatsApp groups, especially on claims of defamation between neighbours in the middle-class estates.
At the same time, the longstanding perception that a libel claim arises if the false statements are published in the media platforms is being defeated in courts.
Multiple people are facing prosecution over messages considered to be libelous posted on community WhatsApp groups, while others are dealing with financial pain caused by hefty penalties.
In the recent past, there has been an increase in court cases arising from WhatsApp group conversations, where some members are using the criminal justice system as a tool for settling personal scores and civil disputes.
Early this month, High Court judge Diana Kavedza called out the police and the Director of Public Prosecutions (DPP) for being deployed as pawns in a personal dispute between two residents of Phenom Park Estate, Samburu Court in Lang'ata, Nairobi.
"Criminal justice powers are not toys to be played around with, and this court, as the bulwark and sentinel of fundamental rights and freedoms, must enforce the Bill of Rights in our Constitution. This court should not be seen to abet abuse of discretion and power and criminality," she stated.
'Serial offender'
The case before her concerned the prosecution of Ms Farzhan Aperera, the chairperson of Phenom Park Estate Samburu Court Residents Association, on charges of creating disturbance.
The criminal case originated from an extensive debate in a residents' WhatsApp group and was initiated at a time she was facing a related civil case.
The group was formed to provide an instant messaging forum for discussing local concerns and promoting a sense of community.
The debate, which led to the criminal case, happened in August 2023 and it involved insecurity in the estate. As the chairperson, Ms Aperera followed up on these reports and would, from time to time, issue updates to the members through the WhatsApp page.
One of the residents was offended and complained that the chairperson had defamed her in the WhatsApp group, leading to bad blood between them and court cases, both civil and criminal.
Also Read: Don’t include me in WhatsApp groups
The angry resident also claimed that the security measures introduced by the estate leadership, such as searching vehicles, interfered with her peaceful stay and her right to privacy.
Defamation
Ms Aperera was served with a demand letter accusing her of posting alleged defamatory statements in the WhatsApp group and insinuating that the resident was harbouring thieves.
Later, police from Lang'ata police station visited her home and thereafter, an officer named George sent her a text message asking her to visit the station in order to answer to the charges of creating disturbance.
This prompted Ms Aperera to rush to the High Court in Kibera, alleging a violation of her rights. She sued the DPP, the Inspector-General of Police and the Officer Commanding Lang'ata police station.
"The genesis of the bad blood between Ms Aperera and the interested party is not difficult to tell. It stems from the messages posted in the estate WhatsApp group that is annexed to the affidavit of the petitioner as part of the documents in the civil dispute pending before another court," said Justice Kavedza while quashing Ms Aperera's prosecution.
According to the judge, although "it is the prerogative of the police and the prosecutor to institute criminal charges, the same must be done responsibly, in accordance with the laws of the land in good faith".
And since the demand letter by the offended resident talked about invasion of privacy through illegal searches of their vehicles and property, Justice Kavedza said these were civil issues that could have been settled without police involvement.
According to the judge, police should not be involved in the settlement of what is purely a civil dispute. The judge held that it is not in the public interest or in the interest of the administration of justice to use criminal justice process as a pawn in civil disputes.
Human rights and social justice lawyer Malidzo Nyawa says the police, DPP and the magistrate courts are to be blamed for criminalization of civil disputes.
"At the heart of this recent trend are three main culprits, the police, the DPP, and the Magistracy. Kenyans created an independent Police service and granted it investigative powers. They also created the DPP and granted it prosecutorial powers. These two entities were meant to be independent and professional, deeply committed to the idea of respecting human rights," says the lawyer.
As the government plans to recruit 10,000 police officers, it should seek to improve the image of the service, which has been tainted by corruption.
"To the contrary, the two entities have betrayed every dream and aspiration in the new constitution. They have allowed the criminal justice system to be used for cases that are purely civil in nature. In the end, they have tarnished the integrity of the criminal justice system".
Regarding the magistrate courts, he says the lower courts are "guilty of a constitutional sin, allowing the abuse of the criminal justice system".
"The Magistracy continues to fold its hands when purely civil disputes are brought before it and allow the criminal justice system to be used as a tool of harassment," observes Mr Nyawa.
In another court dispute involving WhatsApp group conversations, Mr Pharis Mukuria was arraigned at a Kibera court last year for the offence of cyber harassment against his neighbour.
It was alleged he posted an offensive message on Mwarubaini Court Whatsapp group claiming that a lady in house no.....was peddling drugs within the estate. The message was viewed as grossly offensive and affected the owners of the house.
He had been acquitted before being placed on his defence but the DPP appealed the decision and the trial was reinstated by the High Court. In the acquittal ruling, the trial court had stated that the complainant was at liberty to seek relief in a civil court to issue an appropriate award for her emotional pain.
The DPP argued that the trial court trivialized the damage occasioned on the complainants, the homeowners.
The complainants narrated that one afternoon, a message appeared on the estate's WhatsApp group posted by Mr Mukuria claiming that a woman from their house was dealing with drugs and that security agencies were handling the situation.
Shocked by this accusation, they asked him for clarification, but he ignored their questions. He apologized and clarified it was a different house.
The estate security coordinator encouraged the neighbours to resolve the matter peacefully, but tensions remained high, and reconciliation proved impossible.
While setting aside the acquittal, Justice Kavedza found the evidence on record plausible that Mr Mukuria may have committed the offence. If convicted, he faces a punishment of up to ten years in jail or a fine of Sh20 million, or both.
The Prosecution discharged its legal duty and burden of proof, stated the High Court while reinstating the trial.
"It is perplexing that the trial court on the one hand found that the accused person had not committed an offence but in the same breath found out and recommended civil proceedings. It would have been logical if the evidence on record did not disclose the offences and the accused was acquitted irrespective of civil proceedings or not," said the judge.
"The proposal of commencing civil proceedings suggests then there was misconduct by the accused which the trial court preferred to be a breach of legal duty in civil proceedings and not a criminal offence".
Still in Nairobi at Milimani law courts, we found a dispute between neighbours Dr Selina Vukinu and her neighbour Godfrey Onyango, residents of Greenpark Cluster Three in Machakos county.
Mr Onyango was penalized Sh2 million by court for using the words 'bull shit' in the estate's WhatsApp group. He was penalized by Justice Asneth Ongeri.
He used the offensive words in referrence to Dr Vukinu's decision to obtain a court order to stop developments in the estate’s open playground until an ongoing case was heard and determined.
"Those words had the effect of ruining the plaintiff’s reputation. There was a civil way of handling the dispute other than to insult the plaintiff. I accordingly find that the plaintiff is entitled to damages for defamation," said Justice Ongeri.
Mr Onyango did not deny that he published the statement in the Greenpark Cluster Three Whatsapp group platform consisting of 73 members.
He claimed that he was justified in commenting on the ongoing discussion on the issues affecting the estate and the children whose growth was being curtailed. He added that the words complained of were not motivated by spite, malevolence or malice.
However, the court found that the statement caused a debate amongst members of the page and subsequently Dr Vukinu was removed from the group.
In Nakuru, a charity organization officer was penalized Sh2.5 million for publication of an offensive statement on donor finances in a their WhatsApp group.
Ms Sarah Rosborg was ordered to pay Ms Anne Marie Tipper general damages of Sh2.5 million by Justice Samuel Muchochi in November 2024.
" It is not in dispute that the publication was made in a WhatsApp group of “Play Kenya Managers” by the defendant. It is my considered view that the defendant failed to prove that what was published in length was the truth, further there was no justifiable reason to post that in the WhatsApp group at all," said Justice Muhochi.
