Two Nigerian nationals face full investigations by the Directorate of Criminal Investigations after a court rejected their bid to block a case on illegal use of a Kenyan doctor’s images to market their products in the country.
High Court Judge Jairus Ngaah said the investigation into the applicants was lawful and that the court would not interfere with the actions taken by the authorities in enforcing the Computer Misuse and Cybercrimes Act, 2018.
“There is no evidence and, indeed there is no suggestion that in investigating the applicants, any of the respondents has acted contrary to the provisions of Article 157 of the Constitution, sections 24 and 35 of the National Police Service Act in a way that would invite intervention by a judicial review court to exercise its supervisory jurisdiction and either quash the decision to investigate or quash the investigations,” the court said in its October 11, 2024 decision.
The duo, Richard Tsado Bala and Lot Ziko Tsado are directors of Vital Quest International which engages in sale of wellness products via e-commerce.
The case arose from advertisements published by Unilevel Capital Limited, a Dubai-based company contracted by Vital Quest International to promote wellness products in Kenya.
One of the advertisements allegedly impersonated Dr Mercy Korir using her identity to market pharmaceutical products without her consent. The posts prompted Dr Korir to report the matter to the Director of Criminal Investigations in September 2023.
Vital Quest Limited through its directors argued that they had no control over the advertisements, as Unilevel was responsible for all marketing under their contract.
They provided the DCI with evidence of their agreement with Unilevel, which stated that the advertiser was fully liable for any illegal content.
Despite this, the DCI proceeded to investigate Vital Quest, leading to their blacklisting and the confiscation of their electronic devices at Jomo Kenyatta International Airport in January 2024.
The applicants argued that the DCI’s actions, including placing them on a no-fly list, were illegal and based on an unconstitutional law. The applicants accused the DCI of harassment, bad faith, and abuse of power.
Additionally, the applicants told the court that section 23 of the Computer Misuse and Cybercrimes Act, which criminalizes the publication of false information, was vague and unconstitutional as it allowed the police to act arbitrarily.
They sought orders from the court to quash the investigation, remove them from the no-fly list, and declare the evidence obtained by the DCI inadmissible. They also requested that Section 23 of the Computer Misuse and Cybercrimes Act be declared unconstitutional.
In an affidavit, Chief Inspector Nickson Kinyua, the lead investigator in the case, defended the DCI’s actions explaining that the investigation was initiated following Dr Korir’s complaint, which alleged that Vital Quest’s advertisements had misused her identity and scammed unsuspecting consumers.
Mr Kinyua testified that the DCI obtained search warrants from the Kiambu Law Courts, seized suspicious products and devices for forensic analysis, and placed the applicants on a no-fly list to prevent them from fleeing the country.
He further argued that the investigation was ongoing, and any decision to charge the applicants would be made by the law once the forensic analysis was completed.
“As far as I understand the respondents, the investigations are not yet complete. No doubt, the 1st respondent (DPP) will exercise his discretion to charge or not to charge once he has studied the investigations file,” the court has said.
The judge further declined to rule on the constitutionality of Section 23 of the Computer Misuse and Cybercrimes Act, stating that the issue was already under appeal at the Court of Appeal.
He emphasized that it would be inappropriate for the High Court to decide on the matter while it was being litigated in a higher court.
