Travellers Beach Hotel has won a case against a city lawyer and a female colleague who sued the facility for allegedly being turned away after declining to produce their identity Cards at the gate.
James Njogu and Grace Malila sued the five-star hotel for selectively asking them to identify themselves while other races passed freely.
Njogu, a Nairobi-based lawyer, accused the security guard of demeaning them by saying that they could not afford a meal at the hotel after they arrived in a rickshaw (tuk-tuk).
Njogu said that on September 1, 2024, they were stopped at the hotel’s entrance and asked to identify themselves, while others, particularly Americans, Europeans, and Asians, were allowed without identifying themselves.
“I saw other visitors to the hotel being given free access without being asked for identification. We were eventually asked to leave,” said Njogu.
The lawyer said that they had arrived at the hotel in a tuk-tuk and alighted, and made their way to the entrance, where they filled a visitor’s book.
He said that after they filled the visitor’s book, one security personnel remarked in Swahili: “Hamkai kama mnaweza kula kwa hii hoteli…endeni kwingine ama mpitie mlango wa nyuma huku twakubali wazungu na wahindi na warabu” (you seem like you cannot afford to eat at this hotel. Go through the back door, the front gate is for Europeans, Asians, and Arabs).
He said they were discriminated against based on the colour of their skin. They were there for food, leisure, and entertainment activities.
Njogu said that they were discriminated against, humiliated, and harassed through a degrading treatment
He said the act violated Article 27(4) of the Constitution of Kenya and sought general damages for mental torture, distress, inhumane treatment, and breach of their constitutional rights.
The lawyer had lodged a complaint with the management of the hotel via an email dated September 4, 2024, and the hotel proceeded to apologise for the distressing experience they had gone through and regretted that Njogu and Malila were humiliated.
In response to his letter, Travellers Beach Hotel assured Njogu that it was investigating the incident and that whatever happened would not be repeated in the future, and that they had taken up the matter with the staff involved.
“Please be assured that your concerns are a priority, and we are committed to resolving this matter. If you would like to discuss this further, we are available to meet at your convenience. I apologise for the inconvenience and distress caused, and I appreciate your understanding as we work to resolve the issue,” the hotel management wrote to Njogu.
However, in his judgment, Justice Jairus Ngaah said that there was no proof that Njogu and Malila were singled out for a security check that was not ordinary to the rest of the visitors.
He said the cause of action sought by Njogu cannot amount to a constitutional petition.
The judge said Constitutional petitions should not be trivialised to resolve mere vituperations or misused as a general substitute for proceedings that ought to be filed ordinarily.
“What appears to have been largely an altercation between petitioners and the respondent’s sentry or sentries does not merit the status of a constitutional petition, assuming the altercation is actionable,” said Justice Ngaah.
The judge said that there is no evidence of any policy in theory or practice, that the hotel targets a particular class of people in society for specific security checks.
The judge said identifying oneself or submitting to the laid-down security protocol for entry to any establishment, whether private or public, does not amount to a discriminatory or humiliating exercise.
He said security checks in both private and public spaces are commonplace, and they are for the security of life and property.
“It does not require much for one to identify oneself, and I cannot understand why the need for the petitioners (Njogu, Malila) to identify themselves raised so much dust,” said Justice Ngaah.
In their defence, the hotel’s head of security, Daniel Muthini, said the hotel was not privy to Njogu’s travel arrangements or plans because he had made no reservations.
The head of security said that when Njogu was asked for identification, he rudely responded that he is a lawyer who is well conversant with the law, and there is no law requiring him to produce any identification for him to spend his own money at a hotel.
“Upon being informed that it is the hotel policy that visitors should be identified and checked, Njogu retorted that the policy was contrary to his constitutional rights and he would not allow any one search him as this infringed his privacy,” said Muthini.
He said that Njogu was then asked to step aside to allow other people behind to get served as well.
Instead, Muthini said that the lawyer started yelling at the security personnel, telling him that he would sue him and the hotel for subjecting him to degrading treatment in the presence of Malila.
“As other security guards were clearing the other visitors, Njogu and Malila were hurling insults at the security guard and saying they would not be subjected to a search whatsoever,” said Muthini.
He said that Njogu said he would rather leave than be subjected to a search, yet society holds them highly.
Muthini said that there is a signpost at the entrance of the hotel to the effect that all visitors must stop at the entrance for security checks.
“Visitors, whether pedestrians or coming to the hotel in vehicles, are subjected to security checks. Pedestrians, in particular, surrender identification documents after which they are given gate passes,” said Muthini in his affidavit in court.
He further said that where a pedestrian visitor does not have an identification document, they fill out a gate pass to gain access, while visitors driving in are equally checked and their vehicles thoroughly screened.
Muthini said that security checks also serve to protect the hotel since all its services are post-paid, and apparently, some visitors tend to disappear without settling bills after services are rendered.
“Security checks help track down such clients. The main gate is designed in such a way that every person entering the hotel, including members of staff, is subjected to a search at the entrance, and that one can only access the reception if they pass through a security scan,” said Muthini.
