The Supreme Court of Kenya has recently issued guidelines to protect the best interest of the child in a case where a partner at Bond Advocates LLP lent their expertise. In 2012, the appellants, were high school students at Mugoiri Girls School, Muranga. They were presented before a magistrates’ court in Murang’a to answer arson-related charges. Media houses, published or televised images of the students appearing before the court in print, online, and visual media. The stories detailed full identities and descriptions of the seven minors; their names and images were disclosed, and detailed accounts of their alleged participation in the attempted burning of the school were given.

The High Court held that although the law provides for the imposition of extra-judicial sanctions to protect minor offenders from unwarranted publicity, this right is not absolute and can be limited under Article 24 of the Constitution; secondly, that the publication of the story and corresponding photographs were a matter of public interest, hence the question of violating the appellants’ rights did not arise; thirdly, that the stories as published were factual and published without malice; and finally, that the appellants had failed to prove any loss or damage suffered as a result of the alleged breaches thereby failing to discharge the burden of proof. Consequently, the court dismissed the petition with costs to the respondents.

The Court of Appeal affirmed the High Court and dismissed the appeal.

The Supreme Court framed three issues for determination. First, whether the Court of Appeal erred in placing public interest in the publication of the images and identities of children in a criminal trial over and above the children’s best interest. Second, whether upon proof of violation of the minors’ fundamental rights and freedoms, the appellants were required to go further and prove damage or injury suffered as would be the case in normal civil litigation. Third, whether the High Court was right to award costs against children in public. The Supreme Court allowed the appeal in a judgment delivered on 8 September 2023.

First, the Supreme Court found that both superior courts below erred in raising the status of public interest over the protection and the best interest of the children without properly subjecting the limitation to Article 24 of the Constitution. The court found that the media could have achieved the same goal of keeping the public informed by running the story without the children’s names, photographs or identities. Me media could have used initials, pseudonyms, or initials or blurred the images. Thus, media and the state violated Articles 50(8), Article 31 and Article 53(2) of the Constitution.

Second, the Supreme Court held that an injured party is entitled to damages for the loss and injury suffered under private law causes of action, such as tort. In situations like those, compensation for personal loss may be granted upon proof of such loss or damage.

However, arising out of the violation of constitutional rights and fundamental freedoms of an individual under public law, the nature of the damages awarded may broadly be compensatory or vindicatory. The test, therefore is not what would alleviate the hurt that the victim alleges but what is an appropriate relief to protect the rights that have been infringed. Once a petitioner has presented proof on a balance of probabilities that his or her rights were violated, the court must vindicate and affirm the significance of the violated rights, even though the petitioner may not present evidence to demonstrate the loss suffered as a result of the violation.

Concerning the cost order against the minors, the Supreme Court held that the minor’s case was filed to enforce and advance constitutional justice and public interest. For these reasons, parties were to bear their own costs.

Considering the public interest and nature of this case and the broad interests of the parties, the Court issued guidelines aimed at assisting all agencies in the child justice system to navigate the delicate contours of promoting, safeguarding, and fulfilling children’s rights.

The Supreme Court guidelines provide that:

1. At all times and in every circumstance, the child’s dignity, rights and wellbeing must be respected. A child in conflict with the law has the right to privacy during arrest, detention and appearance in court.
2. In reporting cases concerning children in conflict with the law, the child’s image and identity, including the name, the parents, school, and residence shall not be revealed either directly or indirectly.
3.  It is the duty of the presiding officer to ensure that only those permitted by Section 93(4) of the Children Act, 2022 are allowed in the courtroom where proceedings involving a child are held. Depending on the circumstances, the presiding officer may resort to Section 93(5) of the Children Act and adjourn to an in-camera hearing. The prosecution and defence counsel as officers of the court are equally duty-bound to assist the court to comply with this requirement.
4.  The court, where proceedings concerning a child are being conducted,shall not be used at the same time for adults. Children’s Courts should be exclusively for children.
5.  Presiding officers can secure the privacy and confidentiality of a child in conflict with the law, a victim of physical or sexual abuse, or a child witness in court by designing an obscured or blurred screen between the child and the rest of those who are permitted to be in open court by Section 93(4) of the Children Act.
6.  Code names, pseudo names, or initials of their names must be used to describe children in all children’s cases.
7.  The provisions of Article 50 of the Constitution and Section 235(c) of the Children Act must be adhered to in order to conclude cases involving children expeditiously.