JANET WANJIKU KIAMA( WANJIKU STEPHENS) VS OBED ABOKO BUNDI T/a OBED IN THE WILD

(Being an Appeal from the judgment and decree of Hon. J. W. Munene, Adjudicator delivered on 29/7/2022 in Milimani Small Claims Court SCCOMM. E400 of 2022)

1. This appeal arises from a claim dated 13/4/2022 by the appellant against the respondent that the respondent used the appellant’s image and photographs for economic gain without the appellant’s consent and did not compensate the appellant for the same. The appellant thereby suffered loss and damage and sought compensation in the Small Claims Court.
2. The respondent in his response dated 28/4/2022 denied the appellant’s claim for compensation. His response was that they were in a romantic relationship with the claimant but parted ways. He avers further that the photos, the subject of the claimant’s claim were taken during the existence of their said relationship and posted on social media like any couple would do and the claimant was well aware of the postings of the photos on social media. There was thus no commercial agreement between them. He denied that he derived any economic gain from posting the photos on social media. He thus sought that the claim be dismissed.
3. Each of the parties testified in the case and was cross-examined.
4. Upon analysing the evidence, the learned Adjudicator concluded that the claimant had failed to establish the existence of a contract between the parties. Consequently, she dismissed the claim with costs to the respondent thereby eliciting this appeal.
5. The appeal was disposed of by written submissions filed by learned counsels for the parties.
6. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act. So, the first issue for this court to consider is whether the grounds of appeal raised by the appellant are on points of law only.
7. In all the nine paragraphs of the grounds of appeal laid out in the memorandum, the learned counsel for the appellant keeps adverting to the learned magistrate having “erred in law and fact.” Learned counsel would do well to refer and be guided by the Court of Appeal’s observation in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR that:

“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”

1. Out of the nine grounds of appeal set out in the memorandum of appeal, I find the issues of law raised to be that:
   1. The trial court disregarded the evidence of the appellant.
   2. The respondent having admitted in his pleadings and evidence that there was no contract between the respondent and the appellant to use the appellant’s images and photographs for economic gain and the trial court having found as such, it was in error for the trial court to dismiss the claim in total disregard of the evidence adduced as well as the submissions and authorities relied upon in support of the appellant’s case.
   3. The trial court arrived at a wrong conclusion due to an erroneous analysis of what constitutes a contract.
2. On how to proceed to determine an appeal on points of law only, again the Court of Appeal in M’Riungu v. Republic [1983] KLR 455, has given guidance thus:

“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.

1. The SCC Act exempts court proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy. It is upon the Adjudicator to determine the material to rely upon. In that case, the appellate court has no means to overturn the findings of fact by the trial court and substitute them with its own findings. Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence. This means the Adjudicator has the discretion to admit all evidence which may be helpful in establishing whether or not the claim is worthy.  
2. It would appear to me that the standard of proof in a SCC is as per the determination of the adjudicator who is seized of the matter properly applying her mind to the facts and law of the case having followed the rules of natural justice as provided under the Act and not the usual standard in civil cases on a balance of probabilities.
3. Since the High Court will only be seized of the facts as appeared to be relevant to the Adjudicator it follows that it cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters.
4. Under section 41 of the SCC Act, the trial court has jurisdiction to review its orders or awards where there was an error of law on the face of the record. Perhaps, parties would be advised to better take this route before making their way to the High Court on appeal because when the matter lands on the High Court desk on appeal, it will be determined on the narrow parameters of issues of law as circumscribed by the SCC Act.
5. The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
6. This appeal can be addressed under this species of point of law given the grounds of appeal summarized above.
7. I have considered the grounds set out in the Memorandum of Appeal and the submissions by learned counsels for the parties. Learned counsel for the appellant submits that the respondent admitted that he is the proprietor of the entity known as Obed-In-The-Wild under which name he plies his business, he uploaded and used the appellant’s images in the entity’s social media accounts and that there was no commercial agreement between him and the appellant. That the postings were for commercial gain and they were without the agreement or consent of the appellant. The same was for commercial gain for attracting clients. The appellant therefore continues to suffer loss and damage due to the respondent's actions which are ongoing.
8. Learned counsel submits further that the fact that the appellant and the respondent were in a relationship did not give the respondent a ticket to use her photos for economic gain without her consent.
9. On his part learned counsel for the respondent submits that the appellant and the respondent were in a romantic relationship during the period in which the respondent uploaded the appellant’s images on the respondent’s Instagram Platform. During this period the appellant was well aware that the respondent was uploading the pictures and posters with her image on his Instagram Platform. She is therefore estopped from denying the truth. He relies on section 120 of the Evidence Act (Cap. 80) Laws of Kenya and cites the case of 748 Air Services Limited v Theuri Munyi [2017] eKLR, erah Njeri Mwobi v John Kimani Njoroge [2013] eKLR and Titus Muiruri Doge vs. Kenya Canners Limited [1988] eKLR on the application of doctrines of estoppel, waiver and acquiescence to the present case.
10. Learned counsel for the respondent further submits that the appellant impliedly consented to upload her images and therefore has waived her right to compensation. She is therefore not entitled to damages as she has suffered no damage from the uploading of the said photographs and there existed no contract between the two. She only came up with the issue of compensation after their relationship went south.
11. The learned trial adjudicator appears to have been led from the submissions by learned counsels into believing that the claim by the appellant was based on contract and proceeded to determine the same as though it was based on contract. There is nowhere in the statement of claim where the appellant claimed existence or breach of contract. Her claim was in fact based on use of her image sand photographs for economic gain by the respondent without the her consent. The claim was therefore based on the tort of misappropriation of personality which is grounded in constitutional right to privacy (see the case of N W R & another v Green Sports Africa Ltd & 4 others [2017] eKLR)
12. In this case, there was clearly an error of law on the face of the record and the court is bound to interfere with the determination of the trial court. 
13. Having found thus, at this point, I should have sent this case back to the trial to proceed to determine the issues of liability and quantum. However, seeing that all the evidence was taken and in order to expedite the determination of the case, I will proceed to determine the same.
14. The tort of misappropriation of personality is expounded in the cases of Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR and Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017]eKLR. In the later case Mativo J (as he then was), held that;

“25. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.

26. personality rights encompass the exclusive right of an individual to market, control and profit from the commercial use of his/her name. image, likeness and persona. The distinctive characteristics of one’s image, likeness or persona include but are not limited to name, face, signature phrase, paraphernalia or action, costume or personals signature.

28. The tort of misappropriation of personality was first introduced in Canada in the case of Krouse vs Chrysler Canada. The tort can be expressed by stating that 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. The tort of misappropriation of personality can be invoked when all of the following four elements are met:

a) There is an element of commercial exploitation of a person’s personality. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain.

b) The person is clearly identifiable in the medium used and to their respective community or communities.

c) The person does not consent to the use of their personality.

d) Damages, either emotional or financial losses, are proven although recent judicial rulings would indicate the right of privacy is recognized even in the absence of damages).”

1. In this case, the respondent has raised the defence of estoppel and acquiescence by the appellant, a fact which the appellant has vehemently denied and I find no reason to doubt her. In any case, the fact that she expressed a liking for the posting made on social media was no consent to the same being used for economic gain by the respondent.
2. In this case, there is evidence from the appellant and conceded by the respondent that the images and photographs were uploaded to the social media handles Obed_In_The_Wild which is for commercial use as advertisement for the respondent’s business. The appellant is prominently identifiable in the images posted. Even though she has not demonstrated any financial loss, her right to privacy having been breached, the tort of misappropriation of personality is proved. She is thus entitled to compensation by way of damages.
3. Considering the elements of the tort of misappropriation of personality as outlined above, and evaluation of the evidence and the authorities cited I am satisfied that the appellant established all the elements of the tort and therefore find the respondent liable.
4. Neither of the learned counsels made specific proposals on what would be sufficient compensation for the respondent.
5. In the case of Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR the High Court awarded the plaintiff nominal damages of Ksh 500,000/- compensation for breach of constitutional right to privacy by the Defendants. In N W R & another v Green Sports Africa Ltd & 4 others [2017] eKLR, the High Vourt awarded KShs 750,000/= each in a constitutional petition for violation of the fundamental rights and freedoms of the minors by the 1^st respondents action of  using their photographs in the a billboard promoting betting and gambling.
6. Guiding by these decisions and considering that the respondent still uses the appellant’s images and photographs complained of for economic gain I would assess general damages and award the appellant KShs 700,000/= against the respondent.
7. Consequently, I find the appeal succeeds. The Order of the learned trial Adjudicator is set aside in its entirety and substituted with an order that the claim by the appellant (claimant in the SCC) succeeds and judgment be and is hereby entered for the applenant against the respondent in the sum of KShs 700,000/=  with costs to the appellant both in the lower court and in this appeal.
8. Orders accordingly.
9. Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 26^th day of July 2024.

In the presence of:

Momanyi h/b for Osoro for the Appellant.

N/A for the Respondent.

Eutropia Court Assistant.