Nairobi, Kenya – In a stunning development that strikes at the heart of constitutional rights and state surveillance, the Milimani Law Courts have summoned two senior Directorate of Criminal Investigations (DCI) officers to explain how a powerful, commercial-grade spyware application was illegally planted on the smartphones of filmmakers allegedly linked to the explosive BBC ‘Blood Parliament’ documentary—while those devices were in official police custody.
The case, which legal experts are calling a landmark test for digital privacy in Kenya, centers on filmmakers Nicholas Wambugu, Brian Adagala, MarkDenver Karubiu, and Chris Wamae, who were arrested on May 2, 2025. Their legal counsel, lawyer Ian Mutiso, presented forensic audit reports to the court that allegedly show the spyware FlexiSPY was installed on two of the devices on May 21, 2025—a full nineteen days after the men were detained and their gadgets seized by the state.
This revelation suggests an egregious breach of trust and a potentially criminal violation of the right to privacy, raising the terrifying prospect that the very agencies sworn to uphold the law may be weaponizing technology against citizens to silence dissent and gather intelligence illegally.
The Arrests and the Alleged Crime
The chain of events began with the release of the BBC Africa Eye documentary, “Blood Parliament,” which investigated the alleged abduction, torture, and murder of individuals, including women, who were accused of opposing the Kenyan government’s finance bill in 2024. The film sent shockwaves through the nation’s political landscape.
In what was widely criticized as a crackdown on press freedom, the four filmmakers were arrested on May 2, 2025. They were accused of being central to the production and dissemination of the documentary. Their electronic devices—laptops, smartphones, and hard drives—were confiscated as evidence.
According to court documents, the devices were held as part of a standard evidence-gathering process. However, the defence team, led by Advocate Ian Mutiso, took a critical step: they petitioned the court for an independent forensic examination of the gadgets, fearing tampering.
The results of that examination, Mutiso states, were “chilling.” The report concluded that on May 21, 2025, the FlexiSPY application was remotely installed on at least two of the smartphones. The timing is the most damning piece of evidence; it places the installation squarely while the devices were under the exclusive control and custody of the DCI.
What is FlexiSPY? The Invisible Threat
To understand the gravity of this allegation, one must understand what FlexiSPY is. This is not a simple parental control app or a basic tracking tool. FlexiSPY is a sophisticated, invasive, and commercially sold spyware—often categorized as “stalkerware”—designed for covert surveillance.
Once installed on a target device, it typically becomes virtually invisible to the user. Its capabilities are the stuff of dystopian nightmares:
- Total Communication Interception: It can secretly record all phone calls, log every keystroke (including passwords), and access private messages from platforms like WhatsApp, Signal, Telegram, Facebook Messenger, and SMS.
- Live Surveillance: The spyware can activate the device’s microphone to listen to ambient conversations in the room, effectively turning a smartphone into a permanent, live listening bug. It can also remotely activate the camera to take pictures or video.
- Location Tracking: It provides real-time GPS tracking of the device’s location.
- Data Harvesting: It can extract and transmit photos, videos, emails, browser history, and contact lists back to the person controlling the software.
The installation of such a tool on devices in state custody suggests an intent far beyond a standard investigation. It points to a desire for omnipotent, illegal surveillance.
The Constitutional Crisis: A Violation of Article 31
The heart of the legal battle is a direct challenge under Article 31 of the Constitution of Kenya (2010), which guarantees the right to privacy. It explicitly states that every person has the right “not to have— (a) the privacy of their communications infringed upon; or (b) their information seized without authority.”
Lawyer Ian Mutiso argues that this action represents one of the most severe breaches of this fundamental right imaginable. “The state cannot first seize property under the color of law and then use its custody of that property as an opportunity to violate the very constitutional rights it is mandated to protect,” he stated outside the Milimani courts. “This is not an investigation; this is an invasion. It is a criminal act perpetrated by the state against its citizens.”
Legal scholars agree. Professor Wanza Muthoni, a constitutional law expert at the University of Nairobi, explains, “This case creates a fascinating and critical legal dilemma. The ‘fruit of the poisonous tree’ doctrine dictates that evidence obtained illegally is inadmissible in court. If the state itself is the entity that illegally tampered with evidence, it not only contaminates its entire case against the filmmakers but also opens itself up to massive civil liability and criminal charges against the individual officers involved.”
The Motive: Why Would the State Do This?
If the allegations prove true, the motives behind such a risky operation are complex and deeply troubling.
- Intimidation and Silencing: The primary motive could be to send a brutal message to investigative journalists and activists. By demonstrating that even devices in state custody are not safe, it creates an atmosphere of pervasive fear and paranoia, aiming to chill further investigative work into state conduct.
- Source Identification: The “Blood Parliament” documentary relied on brave whistleblowers and confidential sources. The state may have sought to use the spyware to access the filmmakers’ communications—past and future—to identify and potentially target these sources, dismantling the networks that enable such journalism.
- Fishing for Evidence: The state’s case against the filmmakers may have been weak. Illegally installing spyware could have been a desperate attempt to find any information—personal, financial, or communicative—that could be misconstrued or used to build a stronger, albeit illegally obtained, case against them.
- General Intelligence Gathering: Beyond this specific case, it could have been an attempt to build a vast repository of intelligence on the filmmakers’ associates, family, legal team, and other journalists, creating a wider surveillance web.
The Potential Fallout and Next Steps
The summons of the two DCI officers is just the beginning of a long legal battle with wide-ranging implications.
- For the Criminal Case: The defence will undoubtedly file a motion to have the entire case against the filmmakers dismissed based on the state’s gross misconduct and violation of their rights. They will also seek to have any evidence obtained from the devices—or any leads derived from that evidence—thrown out as “fruit of the poisonous tree.”
- For the DCI Officers: If the court finds their explanations unsatisfactory, they could face immediate suspension, internal disciplinary action, and even criminal prosecution for abuse of office, violation of the Computer Misuse and Cybercrimes Act, and contempt of court.
- For the Filmmakers: They have a strong basis for a separate civil lawsuit against the DCI and the Attorney General, seeking significant damages for the profound violation of their constitutional rights.
- For Kenyan Democracy: This case is a litmus test. A strong ruling from the Milimani Court condemning such actions would reaffirm the judiciary’s role as a guardian of the constitution and a check on executive power. It would set a powerful precedent that digital rights are human rights and that state surveillance must have legal boundaries. A weak ruling, or one that excuses the behavior, would signal open season for digital authoritarianism.
A Global Pattern in a Local Context
Kenya is not alone in facing scandals related to spyware. The infamous Pegasus spyware, developed by the Israeli company NSO Group, has been used by governments worldwide to target journalists, activists, and politicians. The alleged use of FlexiSPY in Kenya, a cheaper but still highly invasive tool, follows a similar playbook of using technology not for national security against legitimate threats, but for political surveillance and the suppression of dissent.
The eyes of the world are now on Courtroom number [Number] at the Milimani Law Courts. The questions posed to the two DCI officers will be simple but profound: Who ordered this? What was the legal basis? What were you hoping to find? The answers, or the lack thereof, will reveal much about the state of Kenya’s democracy and the sanctity of its citizens’ most private spaces. The very future of investigative journalism and free speech in the digital age may hang in the balance.
