While turning down a chance to join a radical privacy activist group, Sameen Shaw, a character in popular TV show Person of Interest said, “How you do is just as important as what you do”.
The moral of the adage has now hit home for underwriter APA and a private investigation firm it hired to flash out an attempted insurance fraud scheme by Nairobi-based businessman David Ngite and a driver—Geoffrey Ngumo.
APA and Rapid Investigation Services have been ordered to pay Sh2 million to Ngite and Ngumo as compensation for illegally obtaining their private phone records, and using them in a court to try and prove fraud.
Ngite and Fuels Trading Company sued APA in 2011 after the insurer refused to compensate them for a vehicle that was destroyed after it rolled off a cliff along the Nairobi-Mai Mahiu highway.
A year later, Ngite and the lorry driver, Ngumo, sued APA and Rapid Investigations Services seeking compensation for violation of their right to privacy.
The two demanded Sh2 million each, arguing Rapid Investigations, which APA hired to probe the claim, did not get their consent before obtaining their call records from Safaricom.
Judge Tuiyott in his decision dismissed the compensation claim, arguing Ngite and Fuels Trading Company failed to give any evidence that the incident was indeed an accident.
On the violation of privacy claim, however, Justice Tuiyott agreed with Ngumo and Ngite.
Basing his decision on a 2016 ruling in which former Miss Kenya Roshanara Ebrahim was awarded Sh1 million for violation of privacy after her ex-boyfriend leaked her nude photos, Justice Tuiyott held that a similar award to Ngite and Ngumo would be fair.
Ngumo has since relocated to the US, and was thus unavailable to testify.
His absence dealt a blow to Fuels Trading and Ngite's claim for compensation, as his testimony would have been crucial in arguing the vehicle had an accident.
The judge said there was not enough evidence to show that the damage on the vehicle was as a result of the accident hence dismissed the compensation claim, denying Ngite, who took out the insurance policy, Sh4.48 million.
Judge Tuiyott said the phone records evidence was obtained illegally, and by law, cannot be used in court.
He added that there was no evidence to show APA directed the detectives to obtain the phone records, but noted the underwriter tried to benefit from the illegally acquired evidence, thus guilty of privacy violation.
The underwriter used the investigation findings in its defence, including results from the phone snooping.
“There is no evidence to the contrary and I cannot find that the insurer directed Rapid to snoop into Ngite's and Ngumo's private communication. Nonetheless, it is expected that on issues of fundamental rights we ought to be our brothers or sisters keeper. In the very least one must not aid, abet or encourage the violation of another's rights.”
“APA was happy to use information that had been obtained at the expense of the fundamental rights of Ngite and Ngumo in presenting its defence. It did not frown upon Rapid for obtaining the information illegally. This court must censure the insurer for attempting to gain an advantage from use of information that was obtained in violation of the rights of privacy of the two plaintiffs. For this reason this court finds the insurer equally liable,” the judge ruled.
The ruling by High Court judge Francis Tuiyott has drawn the border line on how far investigators, in both the public and private sectors, can go as detectives try to build cases against suspects.
On January 22, 2010, Ngumo visited Lari police station and reported the vehicle he was driving had been involved in an accident along the Nairobi-Mai Mahiu highway.
Ngumo said he was transporting constructions materials from various sources to a site in Pipeline, Embakasi where Fuels Trading Company was carrying out some works.
The vehicle was registered to Fuels Trading Company.
But the firm said that after buying the truck, it gave beneficial ownership to Ngite.
Ngite then took out a policy with APA Insurance which was to expire in June, 2010.
At the time his driver Ngumo reported the accident to Lari police station the vehicle was hanging on a rock nearly 100 metres down an escarpment, but there was nobody injured.
The vehicle was, however, written off.
Ngite obtained a police abstract from Lari, which described the accident as a hit and run, non-injury accident.
Police, however, did not visit the scene of the accident, nor did they conduct an investigation on the matter.
Constable David Ruto, who was at the time of the accident based at Lari police station, testified and said no investigations were done because Ngumo never returned to record a statement.
After Fuels Trading Company and Ngite claimed compensation from APA for the written off truck, the underwriter commenced investigations as per policy.
Rapid Investigations Services was hired to look into the accident and confirm whether it was worthy of compensation.
Rapid detective John Mukigi said he visited Lari police station and did not find any accident report involving the vehicle.
Mukigi added that he interviewed officers who were on duty on the night of the accident, and they did not receive any report from Ngumo.
The investigator then used his CID contacts to acquire phone records of Ngite and the driver, Ngumo.
The records would reveal that on the night of the alleged accident Ngumo was in Kikuyu area from 10:57pm to 7:56am the next day when he moved to the Ngong Hills area.
Ngite's phone records indicated he was in Kibiko, near Ngong, throughout the night. The records also showed Ngite and Ngumo were in constant communication on that night.
Further inspection of the vehicle revealed there may have been no driver at the time it rolled down the escarpment, according to the investigator.
Mukigi said he sought opinions from vehicle engineering experts during the probe, and was informed after a serious accident, the key gets jammed in the ignition which points at the “on” position.
The ignition for the truck at the centre of the Fuels Trading dispute was in the “off” position, an indication the vehicle may have been turned off before it went down the cliff.
“We inspected the ignition key slot and were convinced the vehicle was already switched off by the time it rolled. We noted the slot was on the “off” position. We sought opinion from experts in the motor vehicle engineering field who told us had the vehicle rolled when the ignition key was in the “on” position, the subsequent system damage would have caused the key to get stuck in that position.”
“This, we were advised, can be practically demonstrated in any manual gear vehicle by releasing the clutch when the engine is running, with an engaged gear, when the said vehicle is stationary. The lorry in question is stationary,” Mukigi said in his report.
Andrew Njenga Nganga, an assessor hired by APA said he found the vehicle hanging on a rock nearly 100 metres down the cliff but his testimony did not clarify whether the truck had gotten there deliberately or accidentally.
Had Ngite and the Fuels Trading Company given evidence that it was an accident, APA would be left with the burden of proving fraud.
Justice Tuiyott's ruling sends a warning to investigators as to how dearly the courts consider privacy as guaranteed by the Constitution, and is an indication that cases can collapse if due process is not followed in obtaining confidential data such as phone records.