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Kamande v Nation Media Group (Constitutional Petition E004 of 2021) [2022] KEHC 16017 (KLR) (1 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16017 (KLR)
Republic of Kenya
Constitutional Petition E004 of 2021
FN Muchemi, J
December 1, 2022
IN THE MATTER OF: ARTICLES 1, 2, 10, 19, 20, 21, 22, 23, 28, 31, 40, 48 & 50 OF THE CONSTITUTION OF KENYA, 2010IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLES 28, 31(C) & 40(1) OF THE CONSTITUTION OF KENYA, 2010IN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS PRACTICE AND PROCEDURE RULES, 2013IN THE MATTER OF: THE DATA PROTECTION ACT, 2019IN THE MATTER OF: ARTICLE 12 OF THE UNIVERSAL DECLARATION ON HUMAN RIGHTS AND OTHER PROVISIONS THERE OF AND IN THE MATTER OF: ARTICLE 17 OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND OTHER PROVISIONS THERE OF BETWEEN
Between
Hilda Kamande
Petitioner
and
Nation Media Group
Respondent
Judgment
1.This petition dated 20th April 2021 and filed on 21st April 2021 seeks for the following orders:-a.A declaration that the respondent violated the petitioner’s fundamental rights to privacy and human dignity under Articles 28 and 31 by publishing the petitioner’s image in its various newspaper publications on 10th September 2020, 2nd March 2021, 16th March 2021 & 19th March 2021 without her consent;b.A declaration that the respondent violated the petitioner’s right under Article 40 of the Constitution by publishing the petitioner’s image and likeness for their own commercial gain with no personal financial advantage gained by the petitioner herein;c.An order of permanent injunction restraining the respondent from publishing and/or using the petitioner’s image and likeness in any way in its newspaper publications, advertisements or promotions in any way without the petitioner’s consent and compelling the respondent to stop any further publications featuring the petitioner’s image and likeness on their newspaper brands;d.An order that the respondent be compelled to compensate the petitioner for damages arising out of misappropriation of personality and or loss arising from the publication of the petitioner’s photograph without her express authority and the explanation of the petitioner by the respondent for commercial gain;e.Costs of the petition.
2.The respondent filed a replying affidavit dated 24th May 2022 and supplementary affidavit dated 8th June 2022 in opposition to the petition.
The Petitioner’s Case
3.It is the petitioner’s case that her image was used by the respondent in the business daily on both its print and online platform. The petitioner contends that she did not give any consent for the taking of her photograph at the time and place it was taken and she has never given her consent for the utilization of her image and/or likeness by the respondent’s newspaper for commercial gain. The petitioner states that the online publications are dated 10th September 2020, 2nd March 2021, 16th March 2021 and 19th March 2021. She contends that the publications dated 2nd and 16th March 2021 were shared with her and her image appears at pages 16 and 17 of the newspaper. Moreover, she contends that the caption in all the publications constitute a gross misstatement of fact as she has never been employed nor owned an M-pesa agency despite the publications alluding to the contrary.
4.The petitioner avers that the business daily is a newspaper for sale and her image in the various publications was automatically utilized for commercial gain. She further contends that she has not received any compensation by the respondent for the use of her image and further that her right to privacy has been infringed as the respondent took her photograph without her consent and utilized the image at least 4 times in various publications. She further contends that she has a right to be respected and thus the respondent by sharing her image abrogated her right of human dignity. Furthermore, the petitioner avers that her right to property was infringed for the sole reason that she has property in her person. The petitioner avers that she lives in constant fear of her personal safety due to the false perception created by the unauthorized use of her image/likeness.
5.The petitioner annexed a supporting affidavit sworn by her sister, Sharon Muthoni, stating that since the petitioner’s image was utilized in the business daily, she has been receiving numerous phone calls from friends and family enquiring about her newly found fortune. She further avers that the perception by most people was that the petitioner was paid a colossal amount of money to appear four times in the newspaper and the petitioner has been living in fear of her security.
The Respondent’s Case
6.It is the respondent’s case that the petitioner has not stated in what manner the respondent has violated the constitutional provisions she has enlisted nor has she demonstrated how the provisions of the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and the Data Protection Act have been violated or are applicable to the present case. Moreover, the respondent avers that the petitioner’s image or likeness was obtained, used and published by the respondent with the knowledge and consent of the petitioner. The respondent contends that prior to capturing and using the petitioner’s image, the petitioner’s employer, Top Image Ltd, had invited the respondent to take photographs for a promotional event which included, images of its products and its employees in their ordinary day to day course of business. Based on the invitation, the respondent’s photographer one Joseph Kanyi visited the petitioner’s place of employment and asked the petitioner’s employer Mr. Shalin, who confirmed that the employees including the petitioner had consented to their images being captured and used by the respondent. The respondent further avers that the petitioner did not object and/or refuse to have her images captured during the exercise despite being aware that her image was being captured by the respondent. As such, the respondent states that they did not violate the provisions of Articles 28 and 31 of the Constitution in respect of the petitioner.
7.The respondent further contends that the petitioner and her employer did not limit the capture and use of the images to the promotional event only. As such, the respondent states that he was under the impression that both the petitioner and her employer had given a blanket consent for the use and publication of the images of the petitioner.
8.The respondent avers that they have an internal standard operating procedure (SOPs) policy governing the capturing and use of images. Under the policy, if a person objects to their images being captured, the respondent would refrain from doing so or in other instances where the subject wishes to limit the use of any images captured to a particular publication, then the respondent would only limit the use to the specific publication and thereafter return the images so captured to the subject whose images have been captured and delete the same from its database. The respondent further avers that under the policy, if the subject whose images are being captured gives a blanket consent, then such images would be retained by the respondent’s database and shall be subsequently used for other publications.
9.The respondent argues that the petitioner did not limit the use of her images to the promotional event only. Consequently and based on the express consent issued by the petitioner’s employer and by the petitioner’s conduct, the respondent’s photographer captured the petitioner’s images and forwarded the same to the respondent’s editor who edited the images to create a final product that was used in the promotional event. The respondent further states that the photo editor saved the petitioner’s images on its database for purposes of use in other publications.
10.The respondent states that it was not until sometime in 2021 when the respondent was put to notice that the petitioner was objecting to subsequent use of her images and/or likeness in the respondent’s publications. Based on that, the respondent states that he caused the petitioner’s images to be removed from its database and refrained from further using the said image in subsequent publications.
11.The respondent argues that since it commissioned the creation of the final images that were used in the promotional event, it acquired ownership rights over the images pursuant to Section 31 of the Copyright Act. As such, the respondent argues that he was not required to obtain the consent of the petitioner to use the image in the various impugned articles. Additionally, the respondent stated that the impugned articles were not published for commercial, exploitative or personal purposes. On the contrary, the respondent states that the impugned articles were meant to uphold public interest by disseminating information to the public on happenings in the country and internationally that may be of public importance.
12.The respondent avers that no pecuniary loss has been occasioned upon the petitioner. The petitioner has not demonstrated that she is the author of the photograph to warrant reliance on Article 40(1) of the Constitution. The respondent argues that the petitioner has not demonstrated any proprietary interest in the image and thus cannot claim that her property has been infringed or that she suffered any pecuniary loss as a result thereof. Moreover, the respondent contends that the petitioner has misconstrued the doctrine of personality rights which consist of two types of rights; the right to privacy and the right to publicity. Property right envisioned under Article 40(1) is not one of the personality rights and the petitioner cannot therefore claim that the use of her image or likeness amounted to an infringement of her right to property under Article 40(1) of the Constitution.
13.The respondent further argues that the petitioner has not produced any evidence to establish any emotional distress suffered, if any, from the publication. From the images used, no reasonable person would have a perception that the petitioner has gained fame and fortune to cause her to live in fear of her safety hence suffer emotional distress. Furthermore, the respondent avers that they used and published the images in the impugned articles only after exercising caution to avoid any harm being occasioned to the petitioner and in compliance with Rule 20 of the Code of Conduct for the Practice of Journalism.
14.The respondent filed a supplementary affidavit sworn by Mr. Joseph Kanyi, a journalist of the respondent and the photographer who took the images of the petitioner. He avers that he obtained consent from the petitioner’s employer Mr. Shanil, to take photographs for a promotional event. He states that Mr. Shanil confirmed that the employees of Top Image Ltd were aware of the event and had consented to the use of their respective images in the promotional event. He further states that Mr. Shanil did not indicate that the use of the said images was restricted and/or only limited to the promotional event, thereby giving a blanket consent to use the images in any other publication.
15.The respondent states that the petitioner did not raise any objection and/or refuse to have her images captured. He further states that the petitioner who was known to him, agreed happily and posed for the photos. As such, the respondent contends that the petitioner did not limit the use of her images and/or likeness to the promotional event only.
16.The respondent states that he shared the various photographs with their editor Ms. Joan Pereruan and confirmed to her that Mr. Shalin had confirmed that they could take and use the photographs of Top Image Ltd employees, including the petitioner’s. Based on that confirmation, the photo editor proceeded to edit the petitioner’s images to create the final image that was used in the promotional event as well as various publications by the respondent.
17.In rejoinder, the petitioner filed a Further Affidavit dated 15th June 2022 and averred that the respondent admitted that they never sought her consent expressly or unequivocally. Instead, the respondent avers that the petitioner’s employer Mr. Shalin had given consent for photos of his employees including the petitioner’s to be taken.
18.The petitioner states that she has never worked for Top Image Ltd or Mr. Shalin and at the time, she was working for Samsun as a sales person. The said company was housed under Samrat Supermarket and Mr. Shalin was the director and/or owner of the said supermarket. The petitioner further contends that the respondent has not explained why they chose to represent her as an M-pesa agent. She contends that the respondent took the photo in a manner skewed to fit their convenient narrative.
19.The petitioner argues that the right to privacy cannot be donated or held vicariously in the manner that the respondent states. Further, the petitioner avers that the respondent ought to have asked her permission before taking the photo and explain the scope of the intended use of the said photo. The petitioner further argues that the fact that she did not object to her photo been taken is not a substitute to implied consent. She further states that looking at the photo, one can tell she was not posing for a photo as she was not facing the camera.
20.The petitioner avers that although the respondent was aware of the displeasure in using her image, the respondent has insisted on using her image as recently as 6th June 2022. The petitioner reiterates that the image was used for commercial and an exploitative purpose. She further avers that she has suffered emotional and financial distress upon the publication of the impugned images as she receives glances and questions on her apparent fortunes based on the publication of her image.
21.On 23rd November 2022, the respondents filed a Further Affidavit dated 22nd November 2022. This affidavit was filed without the leave of court and further the laid down rules of procedure allow the applicant to file a further affidavit if need be, upon the respondent filing his replying affidavit. Upon the applicant filing her further affidavit, the parties move onto hearing the application. Thereby by allowing the further affidavit on record, will turn the proceedings herein into an unregulated game of ping-pong. As such, the further affidavit is a nullity and is expunged from the court record.
22.Parties disposed of the petition by way of written submissions.
Petitioner’s Submissions
23.The petitioner submits that no consent was obtained as is portrayed in the two affidavits sworn by the respondent. The affidavits provide that Mr. Shalin, the petitioner’s employer gave a blanket consent and not the petitioner herself. Further the photographer of the respondent states that the petitioner did not object to her photo being taken, which the petitioner submits that failure to object cannot be substituted as consent. The petitioner further stated that the picture depicts that the photo was taken by the respondent from a distance and zoomed in by the respondent’s cameras, contrary to what the respondent deposed that the petitioner was happily posing for a photo. The petitioner further argues that she denied being employed by Top Image Ltd and she asserted that her employer at the time was Samsung. She further contends that the various images show that she was wearing a branded T-shirt inscribed with the Samsung logo. She further argues that Mr. Shahin was never her employer and that he was the owner of the supermarket within which her stall was housed. The petitioner further argues that the respondent did not avail any documents to show that she signed any consent form or any document showing that her alleged employer had invited it for the event and the latter signed any consent form. The petitioner contends that it is not unreasonable to expect the respondent to have such documentation seeing that it is one of the largest media companies and further it was diligent enough to have a policy document on publication of images. The petitioner further submits that although the respondent stated under oath that they removed the petitioner’s image from its database, the respondent still blatantly used her image a fortnight later in the 6th June 2022 copy of the business daily. As such, the petitioner submits that if the respondent still used her image despite there been an active dispute where the use of the impugned image is seriously being litigated, it is not far-fetched to hold the notion that the respondent never sought consent to begin with. Furthermore, the petitioner argues that this shows that the respondent’s witnesses are not truthful and have perjured themselves.
24.The petitioner submitted that by taking her photo without her consent, the respondent violated her right to privacy, dignity and publicity and her right to property pursuant to Articles 31(c), 28 and 40 of the Constitution of Kenya. To support her contention of infringement of her personality rights of privacy, dignity and publicity, the petitioner relies on the cases of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR and O’Keefe vs Argus Printing & Publishing Co. Limited and Another 1954 (3) SA 244 (c). The petitioner further submits that one’s image and/or likeness constitutes property which is capable of being protected. The petitioner relies on the case of Rukia Idris Barri vs Mada Hotels Ltd [2013] eKLR to support her contention. The petitioner further argues that the respondent contravened her rights amounting to a tort of misappropriation of personality where an applicant has to prove the following elements in order to succeed in a claim for unlawful use of name or image:- use of a protected attribute, for an exploitative purpose and no consent. The petitioner submits that it is not in dispute that the respondent used a protected attribute of hers that is her face and torso and further no consent was obtained before taking the photo. On the issue of the purpose of taking the photo, the petitioner argues that it was taken for commercial gain and an exploitative purpose. The petitioner support her contention by further submitting that the business daily is offered daily for sale in East Africa at roughly 60 Kshs. to an estimated 11 million readers. Further, that all the impugned articles had no nexus with the petitioner but were about Safaricom, a private telecommunication firm, which has never employed the petitioner. Further, the image was used for commercial speech as without the image the article would not appeal or invoke readership. As such, the petitioner submits that the respondent misappropriated her personality.
25.It was further submitted that emotional distress and/or financial loss are not prerequisites to an award of compensation. Moreover, the petitioner submits that she led uncontroverted evidence that she suffered immense emotional distress since the publication of the first image. She stated that all her friends and family believe that she landed a big fortune and that she was modelling for the respondent. The petitioner further stated that she was afraid of her own safety due to the false sense of opulence that the public had and that she suffered financial loss seeing that had she known her photo would be taken and used in the impugned manner, she would have demanded for reasonable compensation from the respondent.
26.The petitioner relies on the case of M. W. K vs Attorney General & 3 Others [2017] eKLR and urges the court to order compensation for the impugned use of her image. The petitioner relies on the cases of Mutuku Ndambuki Matingi vs Rafiki Microfinance Bank Limited [2021] eKLR and Ann Njoki Kumena vs KTDA Agency Ltd [2019] eKLR and submits that the court award her damages of Kshs. 2,000,000/- for the violations by the respondent.
The Respondent’s Submissions.
27.The respondent relies on the case of A M vs Premier Academy [2017] eKLR and submitted that the petitioner has set out various provisions of the Constitution without stating the manner, extent and nature of the infringement of the said provisions and neither has she demonstrated the extent of the injury suffered as a result of the publication. The respondent further argues that the petitioner has not provided any cogent evidence relating to the alleged violation of the constitution with real, concrete and direct loss, damage or injury arising out of the violation. The respondent relies on the case of Josphat Koli Nanok & Another vs Ethics and Anti-Corruption Commission [2018] eKLR to support its contentions.
28.The respondent further submits that the petitioner ought to file her claim in the civil courts as her claim relates to publication of articles containing her image as an m-pesa agent. The respondent makes reference to the case of Francis Gathungu Waithaka vs Kenyatta University [2012] eKLR to support its contention.
29.The respondent argues that the right to privacy is violated when information is obtained in an intrusive manner or the information relating to a person’s family or private affairs is unnecessarily required or revealed. In light of this, the respondent submits that the image on itself does not fall under purview of information relating to private affairs and neither does it amount to a revealing public affair of the petitioner. Furthermore, the petitioner has not demonstrated how her right to dignity has been violated as she has not shown her other rights in the bill of rights has been violated. The respondent makes reference to the case of ANM (Minor) as parents and next friend) vs FPA & Another [2019] eKLR to support its contentions. Moreover, the respondent argues that the petitioner availed any material to prove that she suffered any loss and damage as a result of the publications. Additionally, the respondent submits that the petitioner has not tendered any medical evidence to prove that she suffered emotional distress. As such, the respondent argues that the petitioner’s right to dignity has not been violated.
30.The respondent submits that the petitioner’s right to property has not been violated as her image was not used to advertise the services of the respondent. It is the respondent’s arguments that the petitioner’s image was published alongside articles aimed to create public awareness or enlightment of society regarding M-pesa agents and transactions. The respondent relies on the decision of Jessicar Claire Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 others (2017) eKLR and submits that the petitioner has not proved her right to property was violated as her image for not used for commercial gain.
31.The respondent makes reference to the cases of FAF (Suing on her own behalf and as next friend of SAS and NAMS) vs Norwegian Refugee Council [2019] eKLR and Shiverenje Simani vs Star Newspaper & Another [2021] eKLR and submits that Kshs. 200,000/- will be adequate compensation if the court is persuaded that the petitioner’s rights were violated. The respondents further submit that the cases of Mutuku Ndambuki Matingi vs Rafiki Microfinnace Bank Limited [2012] eKLR and Ann Njoki Kumena vs KTDA Agency Ltd [2019] eKLR as quoted by the petitioner are not applicable in the circumstances as the petitioner has not demonstrated that the respondent used her image to advertise its products or to market its brochures. Moreover, the respondent submits that the petitioner has not demonstrated how she arrived at Kshs. 2,000,000/- in damages and urge the court to find that the claim cannot succeed.
The Law
Whether the petition meets the threshold for a constitutional petition
If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with precision that of which he complains the provisions said to be infringed and the manner in which they are alleged to be infringed.
32.It is indisputable that a constitutional petition to be sustainable as such must at a minimum satisfy a basic threshold. It must with some reasonable degree of precision identify the constitutional provisions that are alleged to have been violated threatened to be violated and the manner of the violation and/or threatened violation. This principle was enunciated in Anarita Karimi Njeru vs Republic (1979) KLR where the court stated as follows:-
33.The principle in Anarita Karimi was further enunciated in Mumo Matemu vs Trusted Society of Human Rights Alliance (2014) eKLR where the court said:-We cannot but emphasize the importance of precise claims in due process, substantive justice and the exercise of jurisdiction by the court.The principle in Anarita Karimi Njeru underscores the importance of defining the dispute to be decided by the court. in our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution. Procedure is also a handmaid of just determination of cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenant of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru that established the rule that requires reasonable precision of framing of issues in Constitutional petitions is an extension of this principle.
34.It is thus clear from the above case law that it is not sufficient to merely cite constitutional provisions. One must provide the particulars of the alleged infringement to enable the respondent to be able to respond and/or answer the allegations or complaints.
35.In the instant case, the petitioner alleges that her rights to human dignity, privacy, dignity and property under Articles 28, 31(c) and 40 of the Constitution were violated by the respondent. The manner of violation was stated to be through the publication of a photograph taken without the petitioner’s consent and published in the business daily on various occasions. Articles 28, 31(c) and 40 of the Constitution stipulate as follows:-
36.Article 28 provides:-Every person has inherent dignity and the right to have that dignity respected and protected.
37.Article 31(c) provides:-Every person has the right to privacy, which includes the right not to have-(c)Information relating to the family or private affairs unnecessarily required or revealed;
38.Article 40 provides:-
39.Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-a.Of any description; andb.In part of Kenya.
40.Notably, the above rights are closely interrelated and intertwined which means that a violation of one may imply a violation of the other. There is a connection between an individual’s right to privacy and the right to dignity. Mativo J in MWK & Another vs Attorney General & 3 Others [2017] eKLR stated that:-Privacy fosters human dignity insofar as it is premised on and protects an individual’s entitlement to a “sphere of private intimacy and autonomy. The rights of equality and dignity are closely related, as are the rights of dignity and privacy.
41.The respondent argued that this petition does not raise constitutional issues and that the Petitioner ought to have filed a civil suit for compensation. The Petitioner cited Articles 28, 31, 40 of the Constitution and has explained in regard of each article what rights she claims were violated by the respondent. Considering the contents of the Petition, I am satisfied that it meets the threshold of a Constitutional Petition and is properly before this court for determination.
Is the Petitioner entitled to the orders sought__?
42.The respondent raised the issue of whether an individual can claim violation of a right against another individual or a group of individuals. The facts are that Nation Media which is not an individual of a group of individuals is the respondent herein. It is alleged that its agent one Joseph Kanyi allegedly took the image of the Petitioner acting on behalf of the respondent, and that the respondent published the said image without the petitioner’s consent. The respondent does not deny that it is their agent who took the photo and that it is them who published the image. The defence of the respondent is that the employer of the petitioner had given consent.
43.The respondent in this argument relied on the case of Francis Gathungu Waithaka Vs Kenyatta University[2012]eKLR where Lenaola J dismissed the petition of an employee of the respondent on ground that the petitioner’s claim had already been sorted out by his employer and that the petitioner ought to have filed a civil claim under labour law instead of a Constitutional petition. I have looked at the facts of that case and am of the considered view that the facts are not relevant to this case. In the petitioner before me, the petitioner has shown that his petition passes the test set in the cases of Anarita Karimi Vs Republic 1979 KLR and the Mumo Matemu’s Vs Trusted Society (Sapra). The respondent’s argument is not merited in my view.
44.Similarly in Kenya Human Rights Commission vs Communications Authority of Kenya & 4 Others [2018] eKLR held:-Privacy is a fundamental human right, enshrined in numerous international human rights instruments. It is central to the protection of human dignity and forms the basis of any democratic society. It also supports and reinforces other rights such as freedom of expression, information, and association. The right to privacy embodies the presumption that individuals should have an area of autonomous development, interaction, and liberty, a “private sphere” with or without interaction with others, free from arbitrary state intervention and from excessive unsolicited intervention by other uninvited individuals. Activities that restrict the right to privacy such as surveillance and censorship, can only be justified when they are prescribed by law, necessary to achieve a legitimate aim and proportionate to the aim pursued.
45.The petitioner argues that the respondent did not obtain consent from her before taking her photo and publishing it in the business daily. She contested the respondent’s averments that consent was obtained by the employer of the petitioner. The petitioner further stated that she did not work for Top Image Ltd nor for Mr. Shahin, personally. Infact Mr. Shahin was the proprietor of Samrat Supermarket which housed a Samsung stall where the petitioner worked. Notably, the respondent does not deny publishing the image of the petitioner. Accordingly, the burden of proof shifted to the respondent to justify that they had obtained consent before taking and publishing the photos. In Mutuku Ndambuki Matingi vs Rafiki Microfinance Bank Limited [2021] eKLR the court cited with authority the case of Karugaba vs Attorney General [2003] 2 EA 489 and held that:-The burden was on the appellants to prove that the state or somebody else under the authority of any law has violated their rights and freedoms to publish guaranteed under the constitution. Once that has been established, the burden shifts to the State or the person whose acts are being complained of to justify the restrictions being imposed or the continued existence of the impugned legislation.
46.In the instant case, the respondent made averments that they received consent to take photos of the petitioner and use them in their publications from Mr. Shahin, the petitioner’s employer. The respondent further averred that Mr. Shahin did not restrict when the said photos could be used but he gave blanket consent which the respondent took as explicit consent to use the photos at any given time in their publications. The respondent however did not give any evidence in form of any documentation that they obtained the requisite consent. It further failed to state in which form the consent was received, either verbally or by written consent. Moreover, the respondent does not seem to have a uniform stand on how consent was obtained as the photographer deposed in his affidavit that the petitioner did not object to her picture been taken and in fact posed for the said photograph. The respondent through their legal counsel deposed that consent was expressly given by Mr. Shahin, the petitioner’s employer.
47.The Petitioner’s evidence is that she was an Mpesa agent in the premises of one Mr. Shahin and that the said Mr. Shahin was not her employer. It is noted that the respondent produced no evidence of the alleged employment. Even assuming that the Petitioner was the employee of the said Mr. Shahin, it goes without saying that it is only the Petitioner as a person who had the capacity to give consent of taking her images and publishing it. An employer possesses no such capacity on personal affairs of another person. This defence of the respondent is just a mere defence.
48.I am further persuaded that the respondent did not obtain consent because the respondent through their legal counsel deposed that it has standard operating procedures which stipulate that in the event a dispute arises concerning an image, the said image is deleted from the respondent’s database. Despite the respondent knowing that the petitioner had raised her dissatisfaction with the use of her image in the respondent’s publication vide her petition dated 20th April 2021, the respondent used her image in its business daily dated 6th June 2022. In the premises, it is my considered view that the petitioner’s right to privacy was violated in the decision in TOS vs Maseno University & 3 Others [2016] eKLR Chemitei J held:-From the above reasoning and expositions of the law it is clear that publication or use of images of an individual without his consent violates the person’s right to privacy. I say so because a person’s life is a restricted realm in which only that individual had the power of determining whether another may enter, and if so, when and for how long and under what conditions.
49.Similarly in the South African case of Angella Wells vs Atoll Media (PTY) Ltd & Another Western Cape High Court Case No. 11961/2006 where the court held that:-…the appropriation of a person’s image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in case, for the benefit of a magazine to sole make profit, it constitutes an unjustifiable invasion of the person rights of the individual, including the person’s dignity and privacy. In this dispute, no care was exercised in respecting these core rights.
50.The issue herein is whether by publishing the petitioner’s image, the respondent used it to make profit. The respondent is a reputable media organisation carrying on media business both print and audio. The respondent sells to the public and both private and public institutions its print media at a price and makes profit. The respondent therefore made profit by publishing the image of the petitioner in the newspapers.
51.In dealing with a similar case of photographic publication, the petitioner relied on the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR where Mativo J stated:-From the above leading decisions on the subject, the key elements of a claim for unlawful use of name or image which a petitioner must establish to succeed in a case of this nature are:-Use of a protected attribute: the plaintiff must show that the defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff’s name or likeness, but the law protects certain other personal attributes as well.For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial and other exploitative purposes.Use of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest.No consent: The plaintiff must establish that he or she did not give permission for the offending use.
52.In the instant case, it has been established that the respondent did not receive consent to take photos of the petitioner and subsequently use them in various publications. The petitioner’s evidence is that the respondent did use aspects of her identity protected by the law. The petitioner demonstrated that the respondent used photos of herself in their publications without her consent. The petitioner has a right to control how her image, name or likeness is used. Therefore if it is used for publicity by another person or organisation, her consent must be obtained. Further, the petitioner contended that the respondent used her image for exploitative reasons. The respondent on the other hand deposed in his affidavit that the photos were not used for commercial gain but for upholding public interest by disseminating information to the public on happenings in the country. It is my considered view that the petitioner has demonstrated that the images were used for an exploitative purpose as the respondent stood to gain commercially to the detriment of the petitioner.
53.I have looked at the publications and noted that the petitioner was wearing a t-shirt branded with the logo of Samsung and that the respondent did not demonstrate that she had any co-relation with Safaricom Ltd. Further, the respondent did not show that said publications upheld public interest or did spark controversial conversation as alleged by the respondent. To the contrary, the publications were more geared on advertising a service offered by Safaricom and would probably propel sales for the benefit of the company. This is despite the fact that the petitioner was never an employee of Safaricom. Moreover, the business daily is a newspaper widely circulated within the east African region and is sold at a certain fee. The more juicy the stories and images supporting them, the more sales the respondent would achieve. In my view, the petitioner has demonstrated that the respondent stood to gain commercially from the publications.In Ahmed Issack Hassan vs Auditor General [2015] eKLR the court held that:-The right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated.Similarly in Kennedy vs Ireland [1987] as cited in Coalition for Reform and Democracy (CORD) & 2 Others vs Republic & 10 Others [2015] eKLR it was held that:-The dignity and freedom of an individual in a democratic society cannot be ensured if his communication of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with.
54.The foregoing decisions describe the nature of and extent to which the right to human dignity requires to be protected and how its violation affects other rights. It is therefore correct to say that taking images of the petitioner without her consent then publishing the said images in the respondent’s publications infringed on her right to privacy which infringed on her right to human dignity.
55.Under Article 40 the right to protection of the right to property is guaranteed. The petitioner argues that one’s image and/or likeness constitutes property which is capable of being protected. The respondent on the other hand deposed that since it commissioned the creation of the final images that were used in the promotional event, it acquired ownership rights over the images pursuant to Section 31 of the Copyright Act. The respondent further states that it acquired exclusive rights over the ownership and use of the said images that were authored by the photographer under the respondent’s employment and as such, they were not required to obtain the consent of the petitioner to use those images. Moreover, the respondent argued that the petitioner’s right to property was not violated because her image was not used for an exploitative purpose.
56.The court has already established that the respondent did not obtain the necessary consent to take the petitioner’s photograph and thereafter use it in their publications. Furthermore, the respondent cannot carry out an illegal act and then claim ownership of the property from the act. Moreover, the law is clear on how data collected and processed by an individual of another person ought to be carried out. Section 26 and 29 of the Data Protection Act stipulates:-A data subject has a right:-a.To be informed of the use to which their personal data is to be put;b.To access their personal data in custody of data collector or data processor;c.To object the processing of all or part of their personal data;d.To correction of false or misleading data; ande.To deletion of false or misleading data about them.
57.Section 29 provides:-A data controller or data processor shall, before collecting personal data, in so far as practicable, inform the data subject of:-a.The rights of the data subject specified under Section 26b.The fact that personal data is being collected;c.The purpose for which the personal data is being collected;d.The third parties whose personal data has been or will be transferred to, including details of safeguards adopted;e.The contacts of the data controller or data processor and on whether any other entity may receive the collected personal data;f.A description of the technical and organizational security measures taken to ensure the integrity and confidentiality of the data;g.The data being collected pursuant to any law and whether such collection is voluntary or mandatory; andh.The consequences if any, where the data subject fails to provide all or any part of the requested data.
58.Further in the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR the court held:-Every individual has an exclusive right to market, for financial gain, their personality, image and name and that the law entitles an individual to protect that right, if it is invaded.
59.The law protects the petitioner’s right to control her image, name or likeness and if it used for publicity or commercial gain by a third party, her consent must be obtained. Therefore, I am persuaded that the respondent violated the petitioner’s right to property.
60.In conclusion, I find that the Petitioner has demonstrated the violation of her rights under Articles 28, 31 and 40 of the Constitution. Under Article 23(c), this court can grant remedies provided for therein to a successful petitioner. It is my considered view that the petitioner is deserving of compensation for the violation of rights. As regards damages, it is well settled that an award of compensation is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the constitution.
61.In MWK & Another vs Attorney General & 3 Others [2017] eKLR the court held that:-It is self-evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms.Translating hurt feelings into hard currency is bound to be an artificial exercise. There is no medium of exchange or market for non-pecuniary losses and their monetary evaluation, it is philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution.
62.I have considered the violation of the petitioner’s rights by the unauthorized use of her photograph and has balanced this with the fact that the petitioner is entitled to adequate compensation for the loss suffered having due regard to the principles laid down in the foregoing decision. The petitioner supported her application by an affidavit sworn by her sister stating that the perception by most of the petitioner’s family and friends is that the petitioner was paid a colossal amount of money to appear in the respondent’s newspaper. The Petitioner, in my considered view is entitled to damages for invasion and violation of her constitutionally guaranteed rights of human dignity, privacy and property.
63.I find this petition successful save for the order of a permanent injunction and enter judgement in favour of the petitioner in the following terms.:-a.A declaration that the respondent violated the rights of the petitioner under Articles 28, 31 and 40 of the Constitution.b.An award of damages for compensation of Kshs.1,500,000/= be payable to the petitioner by the respondent.c.That the respondent do meet the costs of the suit.
64.It is hereby so ordered
DATED AND SIGNED AT NYERI THIS 1ST DAY OF DECEMBER, 2022.F. MUCHEMIJUDGEJUDGEMENT DELIVERED THROUGH VIDEO LINK THIS 1ST DAY OF DECEMBER, 2022
