REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. E117 OF 2022
IN THE MATTER OF BREACH OF THE PETITIONER’S PRIVACY AND DIGNITY
AND
IN THE MATTER OF RULE 4(1) OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER OF ARTICLES 10, 11 (2) (c), 20, 21, 22, 23, 28, 31, 159, 165 (2) (b), 258 & 259 OF THE CONSTITUTION
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 28 & 31 (c) OF THE CONSTITUTION
-BETWEEN-
GIDRAF GATIRA MAINGI ……….………………….....…... PETITIONER
VERSUS
NAIROBI JAVA HOUSE LTD ..…………………………….. RESPONDENT
JUDGMENT
1. The Petitioner herein Gidraf Gatira Maingi filed the Petition dated 21 st March 2022 seeking the following reliefs: -
(1 THAT the Honourable Court be pleased to issue declaration that the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information.
(2 THAT the Honourable Court be pleased to award compensation in form of general damages to the Petitioner for the violation and infringement of his rights.
(3 THAT the Honourable Court be pleased to award costs to the Petitioner.
2. The Petition is supported by the Petitioner’s sworn Affidavit dated evenly with the Petition. The Petitioner’s case is that he was employed by the Respondent from February 2015 until July 2021. That during his employment in the period around 2015–2016, he was photographed while wearing company-branded merchandise.
3. That in December 2021, he discovered through a friend, David Odhiambo, that Java House was advertising using his photograph-image and name. that upon checking shortlist.net/company/java-house, the Petitioner confirmed his image and name were being published globally without prior informed consent.
4. Asserting entitlement to compensation for commercial depiction and violation of fundamental rights, the Petitioner avers that he sent a demand letter to Java House, which was rejected and ignored. Accordingly, he seeks this Court’s intervention, affirming the unfettered primary jurisdiction and asserting that the balance of convenience favours granting the sought orders.
5. In response to the Petition, the Respondent filed a Replying Affidavit dated 20 th June 2022 sworn by Daisy Ogola, Legal and Compliance Officer of Nairobi Java House Limited, in which she deposes that the Petitioner was employed as a Steward from 9 th January 2015, until July 2021, when he was lawfully and fairly subjected to summary dismissal following a disciplinary hearing regarding allegations of theft and lack of integrity.
6. Regarding the Petitioner’s image rights claims, the Respondent asserts that the photographs were taken with the Petitioner’ knowledge and voluntary consent during the course of his employment. The deponent highlights Clause 11 of the Employment Contract , under which the Petitioner agreed that the company owns all intellectual property rights as works made for hire, assigned all such rights across all media platforms and waived any moral rights.
7. Further, the deponent states that the image uploaded to its Shortlist Recruitment Portal was used solely as a profile image to provide an accurate representation of on-duty staff, rather than for commercial marketing or monetary gain.
8. The Respondent refutes allegations that it ignored the Petitioner’s demand letter, noting that it issued a prompt "without prejudice" response on 28 th February 2022, while denying all liability. Although asserting its full legal right to use the photographs under the employment agreement, the Respondent states that it voluntarily took down the Petitioner’s image from the Shortlist website upon learning of his grievance.
9. Consequently, the Respondent contends that no constitutional rights to privacy, dignity, or information were infringed, submitting that the Petition is baseless, filed in bad faith and intended as retaliation for the Petitioner’s summary dismissal.
10. In his further Affidavit sworn on 20 th July 2022 in further response to the Respondent’s Replying Affidavit sworn on 20 th April 2022, the Petitioner states that Nairobi Java House Ltd has misapprehended their 9 th January 2015 employment contract. He rejects the Respondent’s position that his personal image, likeness and personality rights constitute "works made in the course of employment" or intellectual property that could be assigned.
11. The Petitioner asserts that under Clause 11 of the employment contract, signing requisite paperwork was a condition precedent to any waiver or assignment of rights. He challenges the Respondent to produce evidence of any formal request or signed waiver authorizing the publication of his photograph.
12. Further, the Petitioner argues that the Respondent fundamentally confused copyright ownership with publicity and privacy rights. He maintains that while the employer may own the copyright to the physical photograph, it still required his prior informed consent to publish it for marketing purposes. He points out that using his image to represent staff on an online portal constitutes a marketing benefit.
13. He also contends that the Respondent’s voluntary decision to pull down the image despite no explicit demand to do so in his initial letter, demonstrates their awareness that the publication was unjustified.
14. Finally, rejecting allegations that his Petition is a vindictive retaliation for his termination from employment, the Petitioner maintains that the suit is a legitimate pursuit of justice regarding constitutional privacy violations. He concludes that this case presents a timely opportunity for the Court to establish clear constitutional standards for employee privacy and publicity rights.
15. In a subsequent Replying Affidavit sworn by Maureen Mithamo, Head of Corporate Affairs at Nairobi Java House Limited, on 26 th March 2025 , the Respondent reiterates the depositions made in the first Replying Affidavit dated 20 th June 2022 that the Petitioner was employed as a Steward starting 9 th January 2015 and that his employment ended in July 2021 via summary dismissal due to allegations of theft and lack of integrity.
16. It is deposed that under Clause 11 of the Employment Contract, the Petitioner assigned all IP rights as works made for hire to the Respondent, waived all moral rights and agreed to assist in protecting those rights.
17. The deponent asserts that photos of the Petitioner were taken during his employment with his voluntary consent and knowledge that they could be used on company platforms. It is stated that his photo was used as part of the Respondent’s profile on Shortlist , an online recruitment portal, to reflect current staff in uniform.
18. The Respondent denies using the photos for commercial gain, marketing products, or exploiting the Petitioner and ignoring the Petitioner’s demand letter dated 15 th February 2022, stating a "without prejudice" response was delivered on 28 th February 2022. Though not admitting liability, the Respondent states that they took down the Petitioner’s image from Shortlist following his complaint.
19. The deponent rejects allegations of constitutional rights violations of dignity, privacy, information under Articles 28, 31 and 35 as false, unfounded and stated that the Petition is filed in bad faith as retaliation for his summary dismissal.
20. Parties took directions to canvass the Petition by way of written submissions which they highlighted in Court on 18 th June 2026.
Submissions
21. The Petitioner filed his written submissions dated 25 th February 2024 in which Counsel highlighted the following issues for determination:
Whether or not the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information by using and publishing his image;
Whether or not the Petitioner is entitled to damages for the violation and infringement of his rights; and
Whether or not the Petitioner is entitled to costs .
22. Addressing the primary issue of whether the impugned publication infringed the Petitioner’s rights, Counsel anchors the argument on Article 28 of the Constitution on the right to human dignity and Article 31 on the right to privacy. To demonstrate that an individual’s image and likeness are intrinsic to privacy and dignity, reliance is placed on Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR where Mativo J. (as he then was), held that image rights protect personality interests being identity, privacy and dignity; and that unauthorized use of an image for commercial or advertising purposes constitutes an actionable infringement.
23. Counsel for the Petitioner rejects the Respondent’s argument that the image formed part of its intellectual property due to the employment relationship. Quoting the obiter dictum in T.O.S v Maseno University & 3 others [2016] eKLR , Counsel asserts that employees do not forfeit their right to privacy, as publishing an individual’s image without consent directly invades their personal realm.
24. Relying on the ratio decidendi in Wangechi Waweru Mwende v Tecno Mobile Limited & another [2020] eKLR , Counsel for the Petitioner drew the legal distinction between copyright ownership and the distinct constitutional protections guaranteed for privacy and human dignity.
25. Regarding compensation, the Petitioner though his Counsel grounds the claim for general damages in Article 23(3) of the Constitution which empowers the court to grant orders for compensation and declarations of rights. To guide the assessment of non-pecuniary losses, Counsel relies on the principles articulated in MWK & Another v Attorney General & 3 Others [2017] eKLR acknowledging that while emotional distress and feelings of humiliation cannot be measured precisely in monetary terms, awards must remain fair, reasonable and informed by precedent.
26. Counsel highlights comparable awards, citing Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR where Hon. Odunga J. (as he then was) awarded Kshs 2,000,000 and Joel Mutuma Kirimi & another v National Hospital Insurance Fund (NHIF) [2020] eKLR where Ong'injo J. awarded Kshs 5,000,000. Taking inflation into account, Counsel for the Petitioner submits that an award of Kenya Shillings Ten Million (Kshs 10,000,000) is appropriate.
27. Finally, on the issue of costs, the Petitioner invokes the established principle that costs follow the event, relying on Stanley Kaunga Nkarichia v Meru Teachers College & another [2016] eKLR to support the claim for interest on those costs. Counsel also cites Section 27(2) of the Civil Procedure Act (Cap 21) , urging that the Court award interest on costs at the rate of 14% per annum from the date of judgment.
28. In their submissions dated 30 th May 2024 , the Respondents through their legal counsel isolated the following issues for determination:
whether the Petitioner’s rights to privacy, dignity, publicity and information were violated, infringed or threatened by the Respondent;
Whether the Petitioner is entitled to the Orders sought in the Petition; and Who should bear the costs of the Petition.
29. On the first issue of alleged infringement of constitutional rights, Counsel for the Respondent submits that the Petitioner failed to specify the nature, extent and injury of any alleged constitutional infringement, rendering the claims sweeping and unsubstantiated under AM v Premier Academy [2017] eKLR . Grounded in Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR , Counsel submits that image rights require proving that a person’s identity was used for an exploitative purpose without consent. That in this case, the Petitioner admitted to consenting to the photo, which was taken during his ordinary duties as a steward for employee recruitment on Shortlist, yielding no commercial benefit to the Respondent.
30. Regarding privacy and dignity under Articles 28 and 31 and citing the case of Ngugi v County Government of Nakuru [2023] KEHC 22624, Wanjiru v Machakos University [2022] KEHC, and Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR , Counsel submits that the photo was non-intrusive, not intimate and was used strictly for its intended purpose. It is asserted that for the right to publicity to stand infringed, as set out in NWR & another v Green Sports Africa Ltd & 4 others [2017] eKLR , it has to involve the marketing of image rights for financial gain and that in this case, the Petitioner failed to show he declined publication or requested a takedown prior to the demand letter, following which the Respondent promptly removed the image as was held in Makokha v Capwell Industries Limited [2022] KEHC 17134 .
31. Finally, Counsel submits that the claim regarding Article 35 and the Access to Information Act failed because the Petitioner was informed and requested if his picture could be taken and he never asked the Respondent to take it down. That in any case, the Respondent acted promptly by removing the photograph from Shortlist. It is also argued that the Petitioner did not give evidence that he was denied information by the Respondent upon request.
32. On the second issue, the Respondent asserts that because no constitutional rights were infringed, the Petitioner is not entitled to declaratory relief or monetary compensation. Referencing Jessicar Clarise Wanjiru and Peter Ndegwa Kiai v Attorney General & 2 others [2021] KECA 328 , Counsel submits that damages require the exercise of judicial discretion based on principles and evidence of actual loss, which the Petitioner failed to discharge. It is also argued that the Respondent’s immediate removal of the photo upon receiving the demand letter further excuses it from liability.
33. Relying on Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Counsel states that costs remain at the court's discretion, citing Gandhi v UBA Kenya Bank Limited [2023] KEHC 17492. Counsel for the Respondent argues that while costs should not deter access to justice, the Petition completely lacks merit, justifying an award of costs in favour of the Respondent.
Analysis and Determination
34. Having considered the petition and the opposition thereto, the issues for my determination are as follows: -
(i) Whether the petition offends the doctrines of exhaustion and constitutional avoidance.
(ii) Whether the Petition is merited.
(iii) Who bears the costs?
i. Whether this Court has jurisdiction to hear and determine the Petition.
35. It is trite that jurisdiction is the cornerstone of judicial authority. A court of law must first satisfy itself that it is properly seized of jurisdiction, for without jurisdiction, it cannot act where it is bereft of jurisdiction. This Court is empowered to determine the question of jurisdiction not only when raised by parties, but also suo motu the issue of jurisdiction is a fundamental question that goes to the root of competence and has the potential of rendering any proceedings or orders null and void. (See Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment ) where the Court of Appeal stated, inter alia , that:
30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“ By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
See Words and Phrases Legally defined – Volume 3: I – N Page 113
31. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.
32. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”
36. Thus, before delving into the merits of any matter, the Court must interrogate and pronounce itself on whether jurisdiction exists in this case, since jurisdiction is not conferred by consent, nor can it be waived, it must flow directly from the Constitution or statute.
37. In Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR) the Supreme Court aptly established that:
“68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
38. Article 165 of the Constitution sets out this Court’s jurisdiction as follows:
3. Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters.
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
39. The High Court has jurisdiction under Articles 22 and 23, read with Article 165 , to hear and determine any claim of denial, violation, infringement, or threat to fundamental rights and freedoms in the Bill of Rights and may exercise this authority to grant appropriate relief whenever such questions are properly brought before it.
40. This Court observes that, although it is ultimately vested with jurisdiction to hear and determine petitions regarding alleged violations of fundamental rights and freedoms under Articles 22, 23 and 165 of the Constitution , constitutional interpretation is preserved for matters where no statutory mechanism can provide a complete remedy. Instead, under the doctrines of exhaustion and constitutional avoidance, jurisdiction is merely deferred or managed.
41. In other words, the Petitioner is only barred from approaching this Court in the first instance without first pursuing redress from other statutory mechanisms in line with the doctrines of exhaustion and constitutional avoidance.
42. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) stated:
“[255] Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides: Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff?
a. relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;
b. delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”
[256]The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).
[258] From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”
43. The Court of Appeal in the case of Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR clearly explained the principle of exhaustion of remedies thus: -
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
44. In the principles espouse din the above cited decisions were first stated in Speaker of the National Assembly v Karume [1992] KLR 21, where the Court of Appeal at paragraph 15 held that –
“ 15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”
45. The Doctrine of Avoidance requires that a court will not determine a constitutional question if a dispute can be resolved on non-constitutional grounds or through other mechanisms. It connotes that in such a situation, the Court should refrain from determining constitutional issues. In Royal Media Services Ltd v Attorney General [2018] eKLR, the Court of Appeal reiterated that:
“Where it is possible to decide a case without reaching a constitutional issue, that should be done”. The doctrine, just as the exhaustion of remedies principle, preserves the Constitution for real constitutional controversies.”
46. Similarly, in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR Hon. Chacha Mwita J ( as he then was ) stated thus:-
“65.It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”
47. Under the doctrines of exhaustion and constitutional avoidance, this Court, though the guardian of constitutional rights, requires petitioners to first pursue and exhaust available statutory and administrative remedies, before approaching this Court, thereby reserving its jurisdiction as the final safeguard only where those mechanisms prove inadequate or are unavailable. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR , a five Judge Bench of the High Court stated as follows regarding the doctrine of exhaustion and constitutional avoidance:
“ 52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
“ 42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
“ Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
“ It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTION AND HUMAN RIGHTS DIVISION
PETITION NO. E117 OF 2022
IN THE MATTER OF BREACH OF THE PETITIONER’S PRIVACY AND DIGNITY
AND
IN THE MATTER OF RULE 4(1) OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER OF ARTICLES 10, 11 (2) (c), 20, 21, 22, 23, 28, 31, 159, 165 (2) (b), 258 & 259 OF THE CONSTITUTION
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 28 & 31 (c) OF THE CONSTITUTION
-BETWEEN-
GIDRAF GATIRA MAINGI ……….………………….....…... PETITIONER
VERSUS
NAIROBI JAVA HOUSE LTD ..…………………………….. RESPONDENT
JUDGMENT
1. The Petitioner herein Gidraf Gatira Maingi filed the Petition dated 21 st March 2022 seeking the following reliefs: -
(1 THAT the Honourable Court be pleased to issue declaration that the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information.
(2 THAT the Honourable Court be pleased to award compensation in form of general damages to the Petitioner for the violation and infringement of his rights.
(3 THAT the Honourable Court be pleased to award costs to the Petitioner.
2. The Petition is supported by the Petitioner’s sworn Affidavit dated evenly with the Petition. The Petitioner’s case is that he was employed by the Respondent from February 2015 until July 2021. That during his employment in the period around 2015–2016, he was photographed while wearing company-branded merchandise.
3. That in December 2021, he discovered through a friend, David Odhiambo, that Java House was advertising using his photograph-image and name. that upon checking shortlist.net/company/java-house, the Petitioner confirmed his image and name were being published globally without prior informed consent.
4. Asserting entitlement to compensation for commercial depiction and violation of fundamental rights, the Petitioner avers that he sent a demand letter to Java House, which was rejected and ignored. Accordingly, he seeks this Court’s intervention, affirming the unfettered primary jurisdiction and asserting that the balance of convenience favours granting the sought orders.
5. In response to the Petition, the Respondent filed a Replying Affidavit dated 20 th June 2022 sworn by Daisy Ogola, Legal and Compliance Officer of Nairobi Java House Limited, in which she deposes that the Petitioner was employed as a Steward from 9 th January 2015, until July 2021, when he was lawfully and fairly subjected to summary dismissal following a disciplinary hearing regarding allegations of theft and lack of integrity.
6. Regarding the Petitioner’s image rights claims, the Respondent asserts that the photographs were taken with the Petitioner’ knowledge and voluntary consent during the course of his employment. The deponent highlights Clause 11 of the Employment Contract , under which the Petitioner agreed that the company owns all intellectual property rights as works made for hire, assigned all such rights across all media platforms and waived any moral rights.
7. Further, the deponent states that the image uploaded to its Shortlist Recruitment Portal was used solely as a profile image to provide an accurate representation of on-duty staff, rather than for commercial marketing or monetary gain.
8. The Respondent refutes allegations that it ignored the Petitioner’s demand letter, noting that it issued a prompt "without prejudice" response on 28 th February 2022, while denying all liability. Although asserting its full legal right to use the photographs under the employment agreement, the Respondent states that it voluntarily took down the Petitioner’s image from the Shortlist website upon learning of his grievance.
9. Consequently, the Respondent contends that no constitutional rights to privacy, dignity, or information were infringed, submitting that the Petition is baseless, filed in bad faith and intended as retaliation for the Petitioner’s summary dismissal.
10. In his further Affidavit sworn on 20 th July 2022 in further response to the Respondent’s Replying Affidavit sworn on 20 th April 2022, the Petitioner states that Nairobi Java House Ltd has misapprehended their 9 th January 2015 employment contract. He rejects the Respondent’s position that his personal image, likeness and personality rights constitute "works made in the course of employment" or intellectual property that could be assigned.
11. The Petitioner asserts that under Clause 11 of the employment contract, signing requisite paperwork was a condition precedent to any waiver or assignment of rights. He challenges the Respondent to produce evidence of any formal request or signed waiver authorizing the publication of his photograph.
12. Further, the Petitioner argues that the Respondent fundamentally confused copyright ownership with publicity and privacy rights. He maintains that while the employer may own the copyright to the physical photograph, it still required his prior informed consent to publish it for marketing purposes. He points out that using his image to represent staff on an online portal constitutes a marketing benefit.
13. He also contends that the Respondent’s voluntary decision to pull down the image despite no explicit demand to do so in his initial letter, demonstrates their awareness that the publication was unjustified.
14. Finally, rejecting allegations that his Petition is a vindictive retaliation for his termination from employment, the Petitioner maintains that the suit is a legitimate pursuit of justice regarding constitutional privacy violations. He concludes that this case presents a timely opportunity for the Court to establish clear constitutional standards for employee privacy and publicity rights.
15. In a subsequent Replying Affidavit sworn by Maureen Mithamo, Head of Corporate Affairs at Nairobi Java House Limited, on 26 th March 2025 , the Respondent reiterates the depositions made in the first Replying Affidavit dated 20 th June 2022 that the Petitioner was employed as a Steward starting 9 th January 2015 and that his employment ended in July 2021 via summary dismissal due to allegations of theft and lack of integrity.
16. It is deposed that under Clause 11 of the Employment Contract, the Petitioner assigned all IP rights as works made for hire to the Respondent, waived all moral rights and agreed to assist in protecting those rights.
17. The deponent asserts that photos of the Petitioner were taken during his employment with his voluntary consent and knowledge that they could be used on company platforms. It is stated that his photo was used as part of the Respondent’s profile on Shortlist , an online recruitment portal, to reflect current staff in uniform.
18. The Respondent denies using the photos for commercial gain, marketing products, or exploiting the Petitioner and ignoring the Petitioner’s demand letter dated 15 th February 2022, stating a "without prejudice" response was delivered on 28 th February 2022. Though not admitting liability, the Respondent states that they took down the Petitioner’s image from Shortlist following his complaint.
19. The deponent rejects allegations of constitutional rights violations of dignity, privacy, information under Articles 28, 31 and 35 as false, unfounded and stated that the Petition is filed in bad faith as retaliation for his summary dismissal.
20. Parties took directions to canvass the Petition by way of written submissions which they highlighted in Court on 18 th June 2026.
Submissions
21. The Petitioner filed his written submissions dated 25 th February 2024 in which Counsel highlighted the following issues for determination:
Whether or not the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information by using and publishing his image;
Whether or not the Petitioner is entitled to damages for the violation and infringement of his rights; and
Whether or not the Petitioner is entitled to costs .
22. Addressing the primary issue of whether the impugned publication infringed the Petitioner’s rights, Counsel anchors the argument on Article 28 of the Constitution on the right to human dignity and Article 31 on the right to privacy. To demonstrate that an individual’s image and likeness are intrinsic to privacy and dignity, reliance is placed on Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR where Mativo J. (as he then was), held that image rights protect personality interests being identity, privacy and dignity; and that unauthorized use of an image for commercial or advertising purposes constitutes an actionable infringement.
23. Counsel for the Petitioner rejects the Respondent’s argument that the image formed part of its intellectual property due to the employment relationship. Quoting the obiter dictum in T.O.S v Maseno University & 3 others [2016] eKLR , Counsel asserts that employees do not forfeit their right to privacy, as publishing an individual’s image without consent directly invades their personal realm.
24. Relying on the ratio decidendi in Wangechi Waweru Mwende v Tecno Mobile Limited & another [2020] eKLR , Counsel for the Petitioner drew the legal distinction between copyright ownership and the distinct constitutional protections guaranteed for privacy and human dignity.
25. Regarding compensation, the Petitioner though his Counsel grounds the claim for general damages in Article 23(3) of the Constitution which empowers the court to grant orders for compensation and declarations of rights. To guide the assessment of non-pecuniary losses, Counsel relies on the principles articulated in MWK & Another v Attorney General & 3 Others [2017] eKLR acknowledging that while emotional distress and feelings of humiliation cannot be measured precisely in monetary terms, awards must remain fair, reasonable and informed by precedent.
26. Counsel highlights comparable awards, citing Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR where Hon. Odunga J. (as he then was) awarded Kshs 2,000,000 and Joel Mutuma Kirimi & another v National Hospital Insurance Fund (NHIF) [2020] eKLR where Ong'injo J. awarded Kshs 5,000,000. Taking inflation into account, Counsel for the Petitioner submits that an award of Kenya Shillings Ten Million (Kshs 10,000,000) is appropriate.
27. Finally, on the issue of costs, the Petitioner invokes the established principle that costs follow the event, relying on Stanley Kaunga Nkarichia v Meru Teachers College & another [2016] eKLR to support the claim for interest on those costs. Counsel also cites Section 27(2) of the Civil Procedure Act (Cap 21) , urging that the Court award interest on costs at the rate of 14% per annum from the date of judgment.
28. In their submissions dated 30 th May 2024 , the Respondents through their legal counsel isolated the following issues for determination:
whether the Petitioner’s rights to privacy, dignity, publicity and information were violated, infringed or threatened by the Respondent;
Whether the Petitioner is entitled to the Orders sought in the Petition; and Who should bear the costs of the Petition.
29. On the first issue of alleged infringement of constitutional rights, Counsel for the Respondent submits that the Petitioner failed to specify the nature, extent and injury of any alleged constitutional infringement, rendering the claims sweeping and unsubstantiated under AM v Premier Academy [2017] eKLR . Grounded in Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR , Counsel submits that image rights require proving that a person’s identity was used for an exploitative purpose without consent. That in this case, the Petitioner admitted to consenting to the photo, which was taken during his ordinary duties as a steward for employee recruitment on Shortlist, yielding no commercial benefit to the Respondent.
30. Regarding privacy and dignity under Articles 28 and 31 and citing the case of Ngugi v County Government of Nakuru [2023] KEHC 22624, Wanjiru v Machakos University [2022] KEHC, and Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR , Counsel submits that the photo was non-intrusive, not intimate and was used strictly for its intended purpose. It is asserted that for the right to publicity to stand infringed, as set out in NWR & another v Green Sports Africa Ltd & 4 others [2017] eKLR , it has to involve the marketing of image rights for financial gain and that in this case, the Petitioner failed to show he declined publication or requested a takedown prior to the demand letter, following which the Respondent promptly removed the image as was held in Makokha v Capwell Industries Limited [2022] KEHC 17134 .
31. Finally, Counsel submits that the claim regarding Article 35 and the Access to Information Act failed because the Petitioner was informed and requested if his picture could be taken and he never asked the Respondent to take it down. That in any case, the Respondent acted promptly by removing the photograph from Shortlist. It is also argued that the Petitioner did not give evidence that he was denied information by the Respondent upon request.
32. On the second issue, the Respondent asserts that because no constitutional rights were infringed, the Petitioner is not entitled to declaratory relief or monetary compensation. Referencing Jessicar Clarise Wanjiru and Peter Ndegwa Kiai v Attorney General & 2 others [2021] KECA 328 , Counsel submits that damages require the exercise of judicial discretion based on principles and evidence of actual loss, which the Petitioner failed to discharge. It is also argued that the Respondent’s immediate removal of the photo upon receiving the demand letter further excuses it from liability.
33. Relying on Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Counsel states that costs remain at the court's discretion, citing Gandhi v UBA Kenya Bank Limited [2023] KEHC 17492. Counsel for the Respondent argues that while costs should not deter access to justice, the Petition completely lacks merit, justifying an award of costs in favour of the Respondent.
Analysis and Determination
34. Having considered the petition and the opposition thereto, the issues for my determination are as follows: -
(i) Whether the petition offends the doctrines of exhaustion and constitutional avoidance.
(ii) Whether the Petition is merited.
(iii) Who bears the costs?
i. Whether this Court has jurisdiction to hear and determine the Petition.
35. It is trite that jurisdiction is the cornerstone of judicial authority. A court of law must first satisfy itself that it is properly seized of jurisdiction, for without jurisdiction, it cannot act where it is bereft of jurisdiction. This Court is empowered to determine the question of jurisdiction not only when raised by parties, but also suo motu the issue of jurisdiction is a fundamental question that goes to the root of competence and has the potential of rendering any proceedings or orders null and void. (See Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment ) where the Court of Appeal stated, inter alia , that:
30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“ By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
See Words and Phrases Legally defined – Volume 3: I – N Page 113
31. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.
32. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”
36. Thus, before delving into the merits of any matter, the Court must interrogate and pronounce itself on whether jurisdiction exists in this case, since jurisdiction is not conferred by consent, nor can it be waived, it must flow directly from the Constitution or statute.
37. In Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR) the Supreme Court aptly established that:
“68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
38. Article 165 of the Constitution sets out this Court’s jurisdiction as follows:
3. Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters.
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
39. The High Court has jurisdiction under Articles 22 and 23, read with Article 165 , to hear and determine any claim of denial, violation, infringement, or threat to fundamental rights and freedoms in the Bill of Rights and may exercise this authority to grant appropriate relief whenever such questions are properly brought before it.
40. This Court observes that, although it is ultimately vested with jurisdiction to hear and determine petitions regarding alleged violations of fundamental rights and freedoms under Articles 22, 23 and 165 of the Constitution , constitutional interpretation is preserved for matters where no statutory mechanism can provide a complete remedy. Instead, under the doctrines of exhaustion and constitutional avoidance, jurisdiction is merely deferred or managed.
41. In other words, the Petitioner is only barred from approaching this Court in the first instance without first pursuing redress from other statutory mechanisms in line with the doctrines of exhaustion and constitutional avoidance.
42. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) stated:
“[255] Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides: Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff?
a. relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;
b. delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”
[256]The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:
“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”
[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).
[258] From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”
43. The Court of Appeal in the case of Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR clearly explained the principle of exhaustion of remedies thus: -
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
44. In the principles espouse din the above cited decisions were first stated in Speaker of the National Assembly v Karume [1992] KLR 21, where the Court of Appeal at paragraph 15 held that –
“ 15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions.”
45. The Doctrine of Avoidance requires that a court will not determine a constitutional question if a dispute can be resolved on non-constitutional grounds or through other mechanisms. It connotes that in such a situation, the Court should refrain from determining constitutional issues. In Royal Media Services Ltd v Attorney General [2018] eKLR, the Court of Appeal reiterated that:
“Where it is possible to decide a case without reaching a constitutional issue, that should be done”. The doctrine, just as the exhaustion of remedies principle, preserves the Constitution for real constitutional controversies.”
46. Similarly, in Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR Hon. Chacha Mwita J ( as he then was ) stated thus:-
“65.It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”
47. Under the doctrines of exhaustion and constitutional avoidance, this Court, though the guardian of constitutional rights, requires petitioners to first pursue and exhaust available statutory and administrative remedies, before approaching this Court, thereby reserving its jurisdiction as the final safeguard only where those mechanisms prove inadequate or are unavailable. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR , a five Judge Bench of the High Court stated as follows regarding the doctrine of exhaustion and constitutional avoidance:
“ 52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:
“ 42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:
“ Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.
43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:
“ It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in
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