Does Using WhatsApp on Your Work Desktop Take Away Your “Right to Privacy”?

Embarking on a deep dive into workplace privacy issues can be as enlightening as it is challenging. A recent judgment by the Employment and Labour Relations Court in Nairobi is stirring debate about the boundaries of privacy in today’s digital workplace.

One of the pivotal decisions in this area emerged from the case Musa and Another v Makini Schools Limited (2025) KEELRC 17 (KLR), where the court ruled that private communication stored on an employer’s computer does not enjoy the constitutional protection of privacy. Article 31 of the Constitution of Kenya, which safeguards personal privacy, does not extend to information held on devices owned by an employer.

Your work environment is evolving, and with it, the way personal and professional boundaries are defined. As workplaces become more digitally integrated, questions about privacy rights—especially regarding platforms like WhatsApp—are becoming increasingly critical.

• Employer-Owned Devices and Privacy
  The court’s decision indicates that communications stored on company devices may not be considered private. Employers, it argues, have a legitimate interest in accessing such data.

• Policy Implications for Dismissals
  In the discussed case, the claimant’s dismissal for sharing defamatory information was upheld because the evidence was obtained from a work device. This decision underscores the importance of clear workplace policies regarding electronic communication.

• Historical Context and the Right to Privacy
  The origins of the right to privacy, as articulated by Louis Brandeis and Samuel Warren in their seminal work, emphasize protecting the domestic sphere. However, when private communications occur on employer-issued devices, the traditional concept of “domesticity” is challenged.

• Balancing Public and Private Interests
  While the court acknowledged that the right to privacy is not absolute, critics argue that equating device ownership with the abandonment of privacy rights sets a concerning precedent for personal data in the workplace.

Exploring the Nuances of Privacy Rights
To understand the full implications of this judgment, it is essential to revisit the philosophical roots of the right to privacy. Brandeis and Warren described it as the right to be let alone—a principle that was intended to shield personal, domestic information from unwarranted public exposure. They argued that privacy protects intimate communications that, if exposed, could harm one’s reputation or personal dignity.

Conclusion
When you log into WhatsApp or any other private account on a work device, you expect your communications to remain personal. The court’s decision, however, suggests that an employer’s ownership of the device might override this expectation. As digital communication continues to evolve, so too must our understanding of privacy. Employers and employees alike must navigate these emerging challenges, ensuring that policies strike a balance between operational oversight and individual rights.

Choosing how to safeguard your privacy in an increasingly interconnected work environment is critical. Reflect on your current practices and policies, and consider advocating for clear guidelines that protect your personal communications—even on employer-issued devices.

Dr. Joshua Kembero Ogega is an Advocate of the High Court of Kenya, a scholar, and a partner at K.O.M. Advocates LLP.