WhatsApp chats presented in court.
When Elizabeth Waithira Chege, who lives and works in Namibia, hosted her niece, Angela Chemeli Sholei, in the southern African country during a visit, what she didn’t expect was that the warm stay would later become part of a bitter inheritance dispute.
The two relatives are fighting over an estate and a car left behind by Waithira’s sister and mother to Angela, who died five years ago.
Before her death, Angela’s mother lived with her two children at her parents’ house in Buruburu, Nairobi.
Upon her demise, an inheritance dispute arose over the estate, including the Buruburu house.
To iron out the disgruntlement, Waithira and her other siblings resolved that it would be best to retrieve estate documents from the house where Angela remained with her younger sister. It was agreed that it would be best if Waithira would travel back home to handle the matter.
Waithira returned to Kenya in June and July of 2021 for the assignment. During this period, Waithira realised that her mobile phone had started behaving abnormally. It would reboot without being prompted, and sometimes, while she was on a call, she would hear an echo, as if a third party was listening to her conversation.
Her worry grew to suspicion after observing that her niece Angela and other people close to her had confidential information concerning her, yet she had not shared with them information that only existed in her phone. Apprehensive that she may have been hacked, she switched off her phone and registered a new phone number.
Waithira's suspicion that her niece could have ‘hacked’ her phone was only confirmed on March 16, 2022, when she was served with a succession suit No. E1346 of 2021, where she and her niece are parties.
Private WhatsApp messages about an alleged disinheritance plan surfaced in court.
To her utter shock, she discovered that Angela’s affidavit attached screenshots of private conversations from June and July 2021, the period when she was in Kenya to try to iron out the inheritance tussle. Angela had shared the conversations with her advocate, which were used in the filing of the affidavit.
On May 27, 2022, Waithira decided to file a petition at the Constitutional High Court, where she accused her niece of hacking her phone and obtaining private and confidential messages in order to use them as evidence in an ongoing succession case.
Waithira told the court that at no point did she provide this information to her niece; thus, it is apparent that she had unlawfully intercepted, interfered with and hacked her phone.
She argued that her niece's actions were a violation of her right to dignity and privacy, as well as taking issue with her reliance on illegally obtained evidence, arguing it constitutes an offence under the Computer Misuse and Cyber Crimes Act.
Used WhatsApp Web
In a rejoinder, Angela accused her aunt of being careless, leading to her being able to intercept her messages.
She told the court that it's her aunt who granted her access to her WhatsApp when she visited her in Namibia. She said Waithira linked her WhatsApp to her laptop through WhatsApp Web and failed to log out of the WhatsApp Web on the laptop.
It's from that “carelessness” that Angela claims she discovered a ploy between her aunt Waithira and uncle George Gachoka to disinherit her and her sister of their late mother’s estate and a car.
Angela claimed that message pop-ups on her laptop led her to discover that her name was being mentioned in her aunt’s private conversations with other people. And when she went through the messages, she discovered her aunt’s alleged malicious plans to disinherit her and her sister from their mother’s estate. It's on this basis that she resolved to present the same in court as evidence.
The niece defended her actions, claiming that her aunt’s carelessness in failing to log out of WhatsApp Web cannot be construed as illegal.
Further, Angela, through her lawyer, stressed that the petition raised by her aunt ought to have been raised in the succession matter and sought an order to prohibit the use of the alleged illegal evidence; however, she failed to do so.
Justice Lawrence Mugambi.
In his determination, Justice Lawrence Mugambi ruled in favour of Angela. He stated that any dispute over how the evidence was obtained should have been raised within the succession case itself, where the court had full authority to assess its admissibility.
Bringing a separate petition, the judge noted, amounted to a backdoor challenge that risks unsettling a concluded matter when the proper path would have been an appeal or review of the Succession suit.
Judge Mugambi maintained that Waithira had to clear lanes to address her complaint, which she missed. Besides raising the issue in the original court handling the Succession matter, she should also have filed a complaint with the Data Protection Commissioner for investigation and determination.
Further, the judge noted that, given the sharply conflicting accounts from both sides on how the information was obtained, a forensic inquiry should have been launched.
“Without the benefit of a forensic investigation, any attempt to resolve the issue based on contested bare allegations is speculative and futile, as no definitive finding can be reached based on the inconclusive nature of the evidence on record,” Judge Mugambi.
With that analysis, Mugambi dismissed the case.
“This Court thus finds that not only does this Petition not raise genuine constitutional questions, but also, the Petitioner did not exhaust the statutory mechanism that was at her disposal. She failed to report the allegations of data breach to the Office of the Data Protection Commissioner. In my view, forums provided for by the Data Protection Act and the Computer Misuse and Cyber Crimes Act were sufficient to resolve the complaint without invoking the Constitution.”
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