GROUP 2 TORTS ASSIGNMENT

ASSAULT
This refers to an intentional act that puts another person in reasonable apprehension of imminent
harmful or offensive contact. Simply put, it may be referred to as the threat of immediate battery.
The standard of proof is that the actor must have intended to cause harmful or offensive contact
with the victim and thereby puts the victim in immediate apprehension of offensive contact.
Therefore, the tort of assault is actionable per se, meaning that one does not need to show that
there was damage, but only needs to show that there was reasonable fear of imminent harm from
the defendants conduct. This was seen in the case of Stephens vs Myers (1830). The claimant
was chairing a meeting when the defendant started shouting. A majority of the members voted to
have the defendant sent out at which point he came towards the claimant with a clenched fist. He
was held back by the churchwarden, but was nevertheless liable for assault since his conduct was
an overt act, had he not been restrained by the churchwarden he would have effected his threat.
As such the tort of assault has two ingredients:
 The defendant’s conduct
 The effect of the conduct is that it causes the victim to have reasonable apprehension of
imminent harm.
The defendant’s conduct
The element of Intention. The validity of the tort of Assault lies in the intention of the
defendant. Intention means that the defendant had the desire to achieve a certain objective, in this
case, to inflict bodily harm or offensive contact. So that the claimant only needs to prove the
existence of this desire. This was seen in the case of Letang vs Cooper (1965). The claimant was
sunbathing on a piece of grass outside a hotel near to where cars were parked. The defendant
moved his car and run over the claimant’s legs. He did not mean to do so but the claimant argued
that he did not take reasonable care to avoid her. The court held that the proper action was
negligence and not assault since the element of intention was absent. The defendant did not
commit the act with the desire to run over the legs of the claimant, it was a case of carelessness.
There must be sufficient means to effect the threat immediately. The threat must be
actionable by the aggressor for it to cause the victim to have reasonable fear of imminent harm or
offensive contact. This was seen in the case of Thomas v National Union of Mine workers
(1985). This case arose from the 1984 miners strike and the claimant was a miner who had
refused to join his colleagues in the strike. He was among a group of miners who were brought to
the mine each day by special bus, so that they did not have to walk through the groups of striking
miners who stood on the picket line outside. As the bus drove through, the strikers made violent
gestures at those inside it, but the courts held that those actions could not amount to assault
because at the time, the pickets were held back by police officers and the claimant was safe in the
bus, he had no reason to believe that immediate physical harm could be used against him.
The effect of the conduct is that it causes the victim to have reasonable apprehension of
imminent harm
The court must decide whether the victim could reasonably apprehend the threat of immediate
harm stemming from the aggressor’s conduct. This was seen in the case of Stephens vs Myers
(1830). The claimant was chairing a meeting when the defendant started shouting. A majority of
the members voted to have the defendant sent out at which point he came towards the claimant
with a clenched fist. He was held back by the churchwarden, but was nevertheless liable for
assault since his conduct was an overt act, had he not been restrained by the churchwarden he
would have effected his threat and as such one would reasonably fear that there was imminent
harm or offensive contact.
What then is the place of words in Assault cases in tort law? Can mere words constitute an
assault? The case of Read v Coke (1853) ER 1437 tried to explain it. In this case, the plaintiff
was told to leave the premises of where he conducted his business. He refused and the defendant
collected together some of his workmen who stood near the plaintiff with sleeves and aprons and
told him they would break his neck if he didn’t leave. The plaintiff left and it was held that
assault was committed because he left because there was a threat to assault the plaintiff in
addition to the fact that the defendant had the defendant had the capacity to do so. Words
constituted the assault.
On the other hand we have the case of Holcombe v Whitaker (1975) . ‘The plaintiff claimed that
the defendant committed an assault when in June of 1971, she went to see him and tried to get
him to get an annulment, he said "If you take me to court, I will kill you."; and again in October,
1971, after she had filed the instant suit on September 29, 1971, when he went to her apartment
and beat on the door, tried to pry it open, and said again, "If you take me to court, I will kill you."
(The complaint was amended to include this act.) The defendant claims this in no way can
constitute an assault, because it was merely a conditional threat of violence and because no overt
act was involved. The court quoted 1 Harper and James, The Law of Torts, page 223 (1956)
where it states that, “A show of force accompanied by an unlawful demand compliance with
which will avert the threatened battery is an assault.” In this case, it implies that words can only
give meaning to an act and words alone cannot constitute an assault, a subsequent overt act is
required.
Words may negate what would otherwise be considered as Assault. In the case of Tuberville v
Savage (1669), after a misunderstanding, the defendant placed his hand on his sword and said, “
if this was not assizes time, I would not take such language from you.” The assizes were Judges.
The defendant contended that he would not use the sword due to the presence of the assizes.
Kenyan case
CIVIL APPEAL NO 8 OF 1983
Makube v Nyamuro
FACTS
There are two sets of facts which were important for this case. One being the events leading to
the injury in question and the other being the nature of the injury.
Events leading to the injury
1. The appellant’s evidence. The boy, to whom the judge referred to as “Bundi” was, it
appears, aged fourteen at the material time, said in effect that his teacher was always
picking on him and had in the past whipped him. On the day in question the teacher
returned to mark the class Swahili exercises and Bundi collected his book. As he returned
to go the teacher whipped him three times with a piece of rope, the third blow causing
this tragic injury.

2. The two other witnesses ‘ evidence. The learned judge remarked that the other two pupils
called on his behalf as witnesses did not fully support his story. Koroso Marube, PW 2,
his brother, said that there was an altercation between Bundi and the teacher as to Bundi’s
writing, whereupon the teacher pushed him to the desk and whipped him three times
round the neck, while Charles Mageto, PW 6, said that on being told by Bundi that he had
forgotten one letter the teacher held him by the neck and whipped him three times with
the rope. Both agreed that immediately afterwards Bundi urinated on himself. Koroso
said that the teacher used to instruct other pupils how to work, but not Bundi, and Charles
said that he “only caned the plaintiff and not other pupils,” thus supporting Bundi’s
suggestion of victimisation. They all agreed that on this particular morning there was a
Swahili lesson in the classroom and not an arts and crafts lesson
3. The defendant’s evidence. The defendant denied any assault and said it was an accident;
that he was teaching arts and crafts to Standard 3; and that he was collecting the ropes
made by his pupils from sisal and stretching each to see who made the longest for
marking purposes. As he did so Bundi, who previously had a white spot on his eye, (not
confirmed by the other witnesses) “crossed” him and the piece of rope which he then had
struck him in the eye. Bundi did confirm that when they had handiwork lessons, which
they had the previous day (which was a Wednesday), the pupils used to make ropes from
sisal, which were inspected by the teacher who then gave them to the pupils to take home.
The nature of the injury
Mr Amiami, who was referred to as PW 5, a clinical officer of eighteen years’ experience and
who had an appropriate diploma said that considerable force was used to inflict the damage to
the plaintiff’s eye, with severe bleeding, the tissues destroyed and the vision already lost.
ISSUE
Was the infliction of the injury intentional, unintentional(negligent) or a mere mistake?
LAW

The Judge referred to the following set of laws. That while ‘assault’ is frequently the generic
term used to cover both assault and battery, they are two distinct torts, the one being an overt act
indicating an immediate intention to commit a battery and a battery being the direct application
of force to the person of another without lawful justification. Both constitute that species of
trespass known as trespass to the person. The common law liability for trespass was strict:
“No man shall be excused of a trespass … Except it may be judged utterly without his
fault” (Weaver v Ward 80 ER 284)”.
In the same case (which was cited with approval in National Coal Board v Evans (JE) & Co
(Cardiff) Ltd [1951] 2 All ER 310 at p 317), it was said:
“As if a man by force takes my hand and strikes you, or, if here the defendant had said
that the plaintiff ran across his piece when it was discharging … so that it appeared, it
was inevitable, and that the defendant had committed no negligence …”
it would be an accident “purely accidental”, Davies v Saunders 1770 2 CHIT 639.
APPLICATION
The judge allowed the appeal. This is because both the appellant and the respondent agreed on
the infliction of the injury by the teacher to Bundi. Moreover, the other two witnesses also
corroborated the appellant’s evidence that the teacher struck the appellant in the eye. However ,
the nature of the injury incriminated the teacher. The evidence adduced by Mr. Amiami stated,
“considerable force was used to inflict the damage to the plaintiff’s eye, with severe bleeding,
the tissues destroyed and the vision already lost.” The judge thus found that the teacher had the
intention to cause bodily harm towards the student. At this point it is thus important to note that
the element of intention in the tort of assault is quite different from that in the tort of Battery. In
the former, the intention refers to knowingly putting another person in apprehension of
immediate harm while in the latter, intention refers to the interference of the plaintiff by
application of unlawful force. The teacher applied unlawful force towards Bundi.
CONCLUSION
It is thus conclusive to state that the tort of Assault requires two essential ingredients, that
intention must be proven and the threat must be immediate.
DEFENSES IN ASSAULT
Assault is putting a person in fear or immediate battery, and battery is the actual application of
physical force, however slight without lawful jurisdiction
Defences in assault cases can vary depending on the jurisdiction and specific circumstances
some common defenses include;
Self-defense
the defendant argues that they acted to protect themselves from imminent harm or danger
The key to a successful defense of self defense in the element of reasonableness as the defense
will only operate if the force used by the defendant is proportionate to that being applied by an
attacker like in the case of lane v Holloway [1967] the beating was not a proportionate response
to the drunken neighbors gestures
The defense is probably limited to a situation in which the defendant reasonably believe that an
attack is likely
In the case of Ashley v chief constable of sussex police[2008]
It was held that the defense could not only apply where it was based on fact that did not in fact
exist and were unreasonably if honestly held because of things that had been said in briefing
before the raid .this contrast with the criminal law where the defense may have been available in
the circumstances.
In 1993,Dean Davis a jeweler stabbed and killed an armed intruder who broke into his house
intending to steal, the two men faced each other in a confined space and there was a scuffle
during which the intruder let Cs gas. Dean Davis was not prosecuted because it was thought that
he had acted reasonably in self-defense in a very frightening situation
Consent
if the alleged victim consented to the contract or action that led to the assault the defendant may
argue that the action were lawful
In medical treatment for consent to be effective in relieving the defendant liability, it must be
real, the victim must understand what it is they are consenting to and the consent must be freely
given like in the case of MS B An NHS Hospital Test [2002] the defendants were therefore liable
for trespass during the time miss B had been stated against her will and small sum by way of
damages for battery was awarded.
The fact that a person is suffering from mental disorder does not of itself mean they lack
capacity. The Mental Health Act1983 only permits treatment without consent for the actual
mental illness.
In the case of Re[Adult; refusal of medical treatment [1992] the patient is entitled to receive an
indeed invite advice and assistance from others in reaching a decision it is wholly accepted that
the patient should have been persuaded by others of the merit of such decisions. It matters not
how strong the persuasion was so long as it did not overbear the independence of the
independence of the patient’s decisions. On the fact the court held that T’s decision was the result
of over-persuasion by her mother .her refusal of a transfusion was invalid.
Necessity
the defendant contends that their action were necessary to prevent a greater harm or danger. For
example pulling someone back from the path of a speeding vehicle.
In the case of F Berkshire Health Authority [1989] it was held that it was in F’s best interest to be
able to maintain the sexual relationship and thus, under the doctrine of necessity, the operation
for sterilization should take place to protect her from a possible pregnancy.
Lawful authority
if a person committed assault or battery has legal authority for the action, there can be no
liability for that act. The power of the police officer are found in statutes and provided an officer
act within the scope of these powers, there can be no complain for trespass to the person.in the
case of Collins v Wilcock the fact is the police officer took hold of the woman by the left arm in
order to restrain her. In so acting she was not proceeding to arrest the woman and since her
action went beyond the general acceptable conduct of touching a person to engage his or her
attention it must follow that her action constituted a battery on the woman and therefore
unlawful.
Parental authority
In a united Kingdom, the times 1 October 1998 it was held by the court of human right that
article 3 of the convention on human right prohibited caning of a child by a step –parent on the
basis that it amounted to ‘inhuman and degrading treatment’. The Scottish parliament has
debated a Bill to outlaw smacking of young children by their parent but this foundered in part on
the difficulty of defining what amounts of smacking and on difficulties of enforcement.

BATTERY
Battery refers to the intentional infliction of unlawful force towards a person directly. Such that
the tort of Battery has three essential elements, intention, directness and unlawful force.
Intention
The threshold for intention in the tort of Battery is that there merely has to be an intention to
commit the requisite interference with the plaintiff. In the case of Wilson v Pringle (1986), both
the claimant and the defendant were both 13 year old schoolboys. The claimant was walking
along a corridor with his bag over his shoulders. The defendant pulled the bag off his shoulders
causing him to fall to the ground and injure his hip. The prevailing issue was on the intention of
the defendant. The court held that it was not a battery since the element of intention was lacking.
This is because the court recognized the nature of children of such age, it would appear that it
were merely horseplay and was not intended to cause harm. However, it negates the fact that the
motive is immaterial if the intention to interfere with the plaintiff exists.
As such, the principle of transferred intent also comes into play. The courts have held that it does
not matter whether the unlawful force was applied to the wrong target, as long as it was meant to
interfere with someone then the allegations of the tort of Battery is valid. This was seen in the
case of Livingstone v Ministry of Defense(1984). In this case, a soldier fired a rubber bullet at a
rioter but missed and hit the claimant by mistake. The defendant argued that it was not battery
because he did not intend to hit the claimant. The court held that the soldier was liable for battery
due to the principle of transferred intent.
Unlawful force
The essence of this element is that all of us have the fundamental right to bodily integrity or
rather simply put, the right to be let alone. As such, there is the requirement for consent even in
public places where the courts have referred to it as implied consent due unavoidable contact in
the day to day life. Thus, in Cole v Turner Lord Holt CJ said that, “the least touching of another
in anger is a battery”.
Directness
The contact must be direct. Order for a battery to be committed the defendant must come into
direct contact with the claimant. Depending on the view one takes Of this requirement it may not
be battery if D smears dirt on a towel hoping that C will use it to wipe his face. The tendency in
the Criminal law seems to be to give a broad meaning to the word “directly”. Putting acid in a
dryer so that it injured the next person to use it was held to amount to a battery. In Haystead v
Chief Constable of Derbyshire The defendant struck a woman in the face, with the result that the
baby she was holding fell to the floor. The defendant was charged with an offence of assault
(which in this context includes battery) on the baby and his conviction was upheld by the
Divisional Court on the basis that:The movement of W whereby she lost hold of the child was
entirely and immediately the result of the [defendant’s] action in punching her. There is no
difference in logic or good sense between the facts of this case and one where the defendant
might have used a weapon to fell the child to the floor, save only that this is a case of reckless
and not intentional battery.” Of course in the civil law, if the baby had been injured, there would
have been the plainest possible case of negligence even if the defendant had never given any
thought to the likely effect on the baby

MALICIOUS PROSECUTION
Principle of liability. The law provides that for to succeed in a suit of malicious prosecution,
there must be a balance between the freedom of action that everyone should have to set the law
in motion and to bring criminals to justice and on the other hand the necessity to check lying
accusations against innocent people. Basically the standard of proof is a balance of probabilities;
the claimant should be within the limits of his freedom of action and at the same time the claim
shall be based on true allegations against the defendant.
The Damage element. In the case of Saville v Roberts, Holt CJ classified damage in three ways,
any one of which might ground the action(any damage that may form the basis of action),
malicious prosecution might damage a person’s fame or the safety of his person, or the security
of his property by reason of his expense in repelling an unjust charge In cases punishable by
fines the claimant can only rely upon damage to his fame if the offence with which he is charged
is necessary and naturally defamatory of him, such that the question becomes is the statement
that the claimant was charged with the offence capable of a non defamatory meaning? Unless the
claimant was awarded the equivalent of the taxed costs which he has incurred in defending
himself the difference between the costs awarded in the criminal proceedings if any and the costs
actually incurred is sufficient to ground the action
There are four essential ingredients of the thought of malicious prosecution. the following must
be proven by the claimant:
i. That the defendant prosecuted the claimant
ii. Favorable termination of the Prosecution
iii. That the Prosecution lacked reasonable and probable cause
iv. The defendant acted maliciously
The Prosecution
The prevailing question in the issue of the prosecution is who qualifies as a prosecutor? In the
case of Martin versus Watson the House of Lords held that it is not necessary that the defendant
should be the prosecutor in any technical sense what matters is that he should be the person
responsible for the prosecution being brought. the question is who intends that the defendant be
prosecuted Lord Keith argued that where an individual falsely and maliciously gives a police
officer information indicating …Has been procured by the complainant
In AH v AB, The claimant was not the prosecutor because the action arises from several reports
made to the police and originated from a person in whom the defendant had confided in at the
time and it was only after pressure that the defendant provided evident to the police. The
defendant lacked the desire to prosecute the claimant.
Favorable termination of the Prosecution
As long as the prosecution was terminated in favor of the claimant the claimant has a right to
initiate an action against the prosecution regardless of the reason for the termination of the
prosecution. The reason for termination of the prosecutor’s case is immaterial to the claimant’s
right to initiate action for malicious prosecution this is because there is a risk of diverse
determinations by the courts on the same matter and it will be difficult to prove whether in case a
the claimant had reasonable and probable cause for initiating the case or in case B the same was
not present there is reasonable and probable cause if the claimant was convicted it shows that
there was a foundation for the case. Equally and probable cause if the claimant was acquitted. in
the case of Basébé v Matthews, Byles J Thought that if the rule were otherwise every case will
have to be retried on its merits and Montague Smith J Feared that they would be turning
themselves into a Court of Appeal where the legislature allowed none. It would be bad law if all
cases were to be retried on their merits, it would remove the faith of the people in the courts.
Nyarangi J. in the highly celebrated case of The Owners of Motor Vessel ‘Lilian S’ stated,
“Jurisdiction is everything. Without it a court has no power to make one step….”
There is no claim if the conviction stands. In Reynolds v Kennedy, The court held that no action
could lie if the claimant had been convicted even if his conviction was later reversed on appeal
the reason apparently being that the original conviction showed conclusively that there was
foundation for the prosecution but it was no good law because the question of reasonable and
probable cause should be approached in its finality. A successful appeal we'll show the demerits
of the case and may be will prove that there was no reasonable and probable cause.
The prosecutor cannot seek to show that the claimant was in fact guilty because it will be treated
as an abuse of process when any attempt is made to mount a collateral attack on the decision of a
competent court.
Lack of reasonable and probable cause
The definition of reasonable and probable cause was given by Hawkins J in Hicks v Faulkner:
an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable
grounds of the existence of a state of circumstances which assuming them to be true would
reasonably lead any ordinarily prudent and cautious man placed in the position of the accuser to
the conclusion that the person charged was probably guilty of the crime imputed. However this is
from an objective point of view but there is also a subjective twist to it did the prosecutor
actually believe and did he reasonably believe that he had a course for prosecution? The
inadequacy of the subjective test is that it would initiate conflict between the mandate of the
prosecutor to prosecute where there is convincing evidence and the prosecutors discretion in that
what would otherwise convince person X would not necessarily convince person Y. Universally
the objective test has been used by the courts as was seen in the case of Johnstone v Sutton.
Malice
Malice exists where the predominant purpose of the accuser is something other than the
vindication of the law the fact that there was no reasonable or probable cause does not
necessarily mean that there was malice. For instance where there was no honest belief to initiate
the prosecution of an individual then there may be another intention by the prosecutor which will
constitute malice. On the other hand there may be honest belief to initiate the prosecution of an
individual but for some reason the defendant was acquitted due to the demerits of the
prosecutions case there may not be malicious intent.
Relevance of advice received by prosecutor
Advice of council serves to reinforce the justification for initiating prosecution by a prosecutor.
An opinion of council favorable to the prosecutor is not conclusive a complete justification it is a
factor to be taken into account when deciding whether to prosecute.
FALSE IMPRISONMENT
False imprisonment is in itself unlawful and occurs when a person intentionally restrains another
persons movement within an area without legal authority, justification or the victim’s consent.
Generally every confinement of the person is an imprisonment regardless of the place of
confinement-prison, house, street etc. It is false when it is not based on sufficient authority.

According to Blackstone the tort of false imprisonment consists in two elements that the
plaintiff be detained and that the detention be unlawful.
Ingredients of the tort
I)Restraint
False imprisonment cannot be deemed to have been committed unless the restraint is total and
complete. If reasonable means of escape are available and motion not restrained in every
direction the tort cannot be deemed to be committed

See Bird v. Jones(1845) wrongly exposed a part of a public footpath on a bridge by putting seats
in it for use by spectators of a regatta-a boat race. He charged for admission into the enclosure.
The plaintiff insisted on passing through without paying the charge. On the defendant’s
instruction, two police officers prevented the plaintiff from going forward but advised to go
back. He declined to do so and remained in the closure for over half an hour then attempted to
force his way through. He was arrested where upon he was sued for wrongful arrest. To decide
this question the court had to determine whether he had been falsely imprisoned during the
period he had been obstructed by the policemen.
It was held that there was no false imprisonment when the defendant merely obstructs the
plaintiff’s passage and leaves him at liberty to stay where he is or go in any other direction if he
pleases.
However if a police officer falsely(unlawfully) informs a person that they are
under arrest the lawman is most likely to be held liable even if they do not
touch the person. A person will enter detention through conception and the
victim subsequently is not expected to risk an arrest due to an escape. There
are some instances whereby police officers negligently carry out proper
investigation to get accurate material facts before making an arrest and
further proceeding to prosecute as seen in Thomas Mboya Oluoch &
another v Lucy Muthoni Stephen &another. False imprisonment is
observed in the plaintiff’s claim whereby the plaintiffs were unlawfully
detained at Murang’a police station due to claims of assault by the
defendant and later on after proper investigation it was discovered that in
the highcourt findings the offense never took place hence the original
conviction and sentence was quahed by the high court.In the above case
initial lack of proper investigation by police to accurately verify the honesty
of the 1st defendants accusation is critical to the claim of false imprisonment

Imprisonment was defined in the case Meering v. Grahame-White Aviation Co. Ltd(1920) to
mean that ‘the restraint of a person’s liberty whether it is in the open field or in the stocks or cage
or in man’s own house as well as in the common goal.’ Imprisonment is committed even if the
plaintiff did not know he was being detained. In the Meering case the defendant suspected the
plaintiff to have stolen a container of varnish. Two of the defendant’s police asked him to go to
the defendant’s office. He agreed and was taken or invited into the waiting room while the police
remained in the neighborhood. When he sued for false imprisonment the defendant claimed that
he was at that time perfectly free to go where he liked but that he did not desire to go away. It
was held that the defendant’s were liable because from the moment he came under the influence
of the police, the plaintiff was no longer a free man.
Lord Atkin stated that; It appears to me that a person could be imprisoned while he is asleep,
while he is a state of drunkenness, while he is unconscious and while he is a lunatic. He is of the
opinion that although a person might not know he was imprisoned, his captors might be boasting
elsewhere that he was.
An essential element of this tort is that the victim should be aware of the fact of denial of his
liberty. If a victim is unaware of false imprisonment and suffers no harm he/she can recover
nominal damages.
II)Intentional Act
Nowadays intention of committing the tort of false imprisonment is immaterial and unimportant
because it is a tort of strict liability.
R v Governor of Brockhill Prison
Evans was sentenced to two years in jail but had spent some time in custody prior to his
sentencing. His release was calculated and reduced to 18 th November 1996 using home office
guidelines instead of 17th November 1996.It was ruled that the period between this dates he had
falsely been imprisoned since this is a tort of strict liability and the fact that the wrong
calculation of dates could have been a mistake is immaterial.
In most instances acts of omission cannot amount to false imprisonment as seen in Iqbal v
Prison Officers Association .The claimant complains of being locked in a cell for six extra hours
,a period during which he would normally not be locked up, during a strike by prison officers.
The claim was dismissed because its an act of omission and therefore not a positive act
There are possible defenses to be used such as;
I)Reasonable Condition for release
A person is entitled to impose a reasonable condition of release of the claimant. AS seen in Herd
v Weardale Stell,Coal and Coke LTD. A miner went underground for his usual shift 9:30am-
4pm.A dispute occurred which consequently caused him demand he be raised at 11.00 am .He
however was raised at 1:30pm.It was ruled that he had only the right to be raised in the case of
an emergency or at the end of his shift due to the agreement for him to work the whole shift.
ii)Lawful arrest
Private citizens making a citizen’s arrest should be very careful as a private citizen only has
protection from liability if a detainable offense has been committed. A police officer however
does not lose protection in the case of a mistaken arrest provided the arrest was reasonable under
all circumstances.
iii)Detention for medical purposes
The mental health act of 2005 advocates for lawful detention of persons suffering from mental
disorder. However the mental Incapacity act of 2005 contains a provision that ensures all patients
detained in psychiatric institutions can challenge the legality of their detention by application to a
mental health review tribunal.
Breach of Privacy
This may occur when someone intentionally invades another person’s private space and affairs or
personal boundaries during an assault. It can also be described as the public disclosure of private
information about an individual that would cause them embarrassment and humiliation. In order
for the court to establish a breach of privacy, the plaintiff must demonstrate that the actions of the
defendant were intentional and that they caused harm, distress or humiliation to the plaintiff.
In the case of Richard Lloyd v Google (2019), Lloyd representing a class of over 4 million
Apple iPhone users, brought a case against Google LLC regarding the acquisition and use of
browser-generated information which is information about an individual's internet use
automatically submitted to websites and servers by a browser. Google, through the use of
cookies, was able to identify visits by devices to websites displaying advertisements and collect
substantial amounts of information, including visit dates, time spent on sites and pages visited.
Over time, Google tracked it to deduce various personal information about users. The claim
alleged that Google secretly tracked internet activity between August 9, 2011, and February 15,
2012, for commercial purposes. The claimant sought damages for infringement of data protection
rights, commission of wrong, and loss of control over data protection rights.
The case questioned whether data control had value under English law, despite not being
property. Loss of data control was deemed compensable under the Data Protection Act,
constituting damage. Compensatory damages served to compensate for the loss of control and
distress. The Supreme Court confirmed that a claim for damages for the unlawful processing of
data under the Data Protection Act can only be made if the data subject has suffered some form
of material damage like financial loss or distress.
In the case of Ondieki v Maeda (2022), The defendant in this case, installed CCTV cameras on
her premises for security purposes. Aggrieved by the defendant’s actions, the plaintiff, an
adjacent neighbour claimed that the CCTV camera installation breached his constitutional right
to privacy. He stated that the cameras were positioned in a manner that could spy, monitor, and
record the images of his property. He stated that he had tried to resolve the issue amicably with
the defendant but he could not cooperate. The plaintiff then put up a barricade to block the
camera, but the defendant uninstalled and reinstalled the cameras above the barricade and
continued to spy, record, and monitor the plaintiff’s compound. The Court failed to acknowledge
the exemptions for processing personal data by an individual during a personal or household
activity under the Data Protections Act stipulating that individuals processing personal data
during a personal or household activity shall be exempt from complying with data protection
principles relating to lawful processing, minimization of collection, data quality, and adopting
security safeguards to protect personal data. The Court therefore relied on consent as the only
lawful basis for processing personal data by a data controller and ignored indirect collection of
personal data by the defendant.

GROUP 2 Members
Bethwel Momanyi Justus GPR3/3759/2023
Otieno Oliver Omondi GPR3/3755/2023
Rehema Awuor Adundo GPR3/7255/2023
Maxwell Joe Otieno GPR3/3681/2023
Masikare Brian Obara GPR3/3810/2023
Kone Abraham Sirere GPR3/3646/2023
Isaiah Daniel GPR3/3794/2023
Ojwang Jesca Akinyi GPR3/3746/2023
Daniel ojwang Obote GPR3/3684/2023
Orenge Daniel Magati GPR3/3892/2023
Gloria Mumbua GPR3/3734/2023
Stephen Mburu Ndung’u GPR3/3715/2023