Introduction
1. The petition dated 26 th July 2023 is supported by the petitioner’s affidavit in support of even dated and Further Affidavit dated 28 th June 2024.
2. The petition challenges the respondents use of the petitioner’s image without her consent in their hard copy restaurant menus and on their website from October 2017 to May 2023.
3. On this premise, the petitioner seeks the following relief:-
a) A declaration be and is hereby issued that the respondent violated the petitioner’s fundamental right to privacy and human dignity under article 28 and 31 of the Constitution by publishing the petitioner’s image for purpose of commercial advertisement without the petitioner’s consent.
b) A declaration be and is hereby issued that the respondents violated the petitioner’s right under Article 30 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.
c) A declaration be and is hereby issued that the petitioner’s intellectual property rights, right to publicity and personality rights were infringed when the respondents decided to publish the petitioner’s image in advertising and marketing the hotel products and services offered for financial gain without seeking authority/consent from the petitioner.
d) An order of permanent injunction be and is hereby used restraining the respondents from publishing and/or using the petitioner’s image and likeness in their advertisements or promotions in any way without the petitioner’s consent.
e) An order that the respondents be compelled to compensate the petitioner with payment of Kshs. 35,000,000/- in damages and/or arising from the publication of the petitioner’s photograph without her express authority.
f) General damages for malicious damage for exploitation of the petitioner by the respondents for financial gain.
g) Any other relief that the court deems fit to grant.
h) Costs of the petition.
4. The 2 nd respondent filed replying affidavits dated 22 nd and 23 rd February 2024 in opposition to the petition and a Further Affidavit dated 13 th September 2024.
The Petitioner’s Case
5. The petitioner is a female adult of sound mind residing within the Republic of Kenya. The 1 st respondent is an American multinational company with its headquarters in Bethesda, Maryland, USA, that operates, franchises and licences lodging including hotels, residential and timeshare properties. The 2 nd , 3 rd , 4 th & 5 th respondents are companies duly registered in Kenya under the Companies Act of Kenya whose principal offices are at Nairobi Kenya. The 1 st respondent operates a hotel franchise in Nairobi Kenya in the name and style of Four Points by Sheraton and the 2 nd to 5 th respondents are the owners of the 1 st respondent’s franchise hotel in Nairobi otherwise operating under the name and style of Four Points by Sheraton, Nairobi Airport situated near Jommo Kenyatta International airport.
6. The petitioner states that between September 2017 and June 2019, she was employed by the 2 nd – 4 th respondents to work at the Four Points by Sheraton Nairobi Airport at the services department of the said hotel. In the course of her employment, she realised that the respondents had taken a photograph of her without her consent and were using it on their online menu at their restaurant.
7. The petitioner further states that she humbly requested the respondents to pull down her image from the restaurant menu but they declined. After she left employment, she discovered that the respondents were still using her photograph depicting her serving customers in their online menu as well as the printed copy menus provided to their customers, advertising and marketing of the various products offered by the respondents.
8. The petitioner depones that she conducted a further online search and discovered that the online menu was shared across all the hotels, outlets and franchise of the 1 st respondent and advertisement of all the services and products offered to their customers at the Nairobi Airport Hotel. She further noted that the picture must have been taken without her knowledge or consent while she was quietly working for the respondents between the years 2017 and 2019. She further depones that the main motive of using her image was to give the hotel products and services visibility which would yield more profits in terms of the many customers who were being targeted for the said menus and advertisement across the world, thereby giving the said products commercial speech.
9. Upon writing to the respondent to seek an explanation why they were using her image to advertise and promote their hotel products, the respondents expressly admitted to using her image and photograph as has been its practice and indicated that they would instead compensate her. The petitioner contends that the respondent’s use of her image has resulted in people, especially the various customers she has served in different hotels, her subsequent employers and peers assuming that she is working in partnership with the respondents as their brand ambassador, which is not the case.
The 2 nd – 5 th Respondents’ Case
10. The respondents aver that the 3 rd , 4 th and 5 th respondents are shareholders in the 2 nd respondent. Further, they are separate and independent legal entities and they do not have any management or operational responsibilities/roles within the 2 nd respondent’s hotel business.
11. The respondents confirm that the petitioner is a former employee of theirs who served them in various capacities at the hotel between September 2017 and June 2019. The respondents aver that the petitioner left the hotel in June 2019 after her employment came to a lawful end. The respondents aver that the petitioner has never had any legal or other relationship or interaction with the 3 rd , 4 th and 5 th respondents. Thus, the petitioner’s allegations that the 3 rd , 4 th and 5 th respondents were her employers are baseless. The respondents depone that they are not aware of any legal relationship or interaction that the petitioner has had with Marriot Bonvoy.
12. The respondents state that in October 2017, their hotel opened a roof top bar and grill restaurant known as “Tazama” (the restaurant) which had a hard copy of food and drinks menu. Between October 2017 and May 2023, the menu contained a picture that included a hazy image of an unidentifiable person in a red t-shirt and black trousers and the artwork on one of the restaurant’s walls, which comprised a mural with an image of an unidentifiable person’s face. The respondents contend that the images referred to above are not of the petitioner and the basis upon which she alleges that they are her images is unclear. Further, it is impossible to assign the images referred to above to any specific person and to draw a conclusion thereon.
13. The respondents aver that they did not take, use or publish any photograph or image of the petitioner in the manner alleged. Further, the respondents aver that the foundational requirement for a claim of infringement of image, dignity and privacy rights is that the impugned image ought to be definitively and objectively identifiable as the complainant’s image, which is not the case herein.
14. The respondents admit that between 19 th and 25 th May 2023, they exchanged email correspondence after the petitioner served them with a demand letter dated 15 th May 2023, on a strictly without prejudice basis in a bid to understand what the claim in the demand letter related to and whether it could be mutually settled. Despite the correspondence being on a without prejudice basis, the petitioner has produced the same herein which is contrary to law and ought to be expunged. That notwithstanding, the respondents avers that they did not admit liability for the petitioner’s claims that were contained in the demand letter.
15. In support of their case, the respondents filed a Replying Affidavit dated 22 nd February 2024 sworn by Kevin Esendi Agwona who is a visual and graffiti artist with a leaning towards spray painted murals. The deponent states that in June 2017 he was approached by Mr. Shreya Karia, a representative of the 2 nd respondent, who was interested in getting him to paint a mural at the Four Points by Sheraton Hotel located at Jommo Kenyatta International Airport. It was agreed between them that he prepare a sketch of the proposed mural and sent it to him for the 2 nd respondent to review which he did on 10 th June 2017. The notable feature of the sketch was the portrait of a female face.
16. The deponent states that the 2 nd respondent approved the sketch albeit with some suggested changes and then instructed him to proceed to paint a mural at the hotel. The deponent further states that he accepted the assignment at a fee of Kshs. 160,000/- and painted the mural at the hotel based on the sketch and customer changes and when he completed it he took a photograph of it and posted it in the portfolio page on his website. The deponent avers that the sketch and mural were the work of his hands and he created the portrait of the female face without reference to any photograph or image of an existing person.
17. The deponent further avers that he does not know the petitioner; he has never been introduced to her; he has never seen a photograph of her and he painted the mural using the method and under the circumstances described above.
18. The petitioner filed a Further Affidavit dated 28 th June 2024 and states that Caroline Kaburia is not a director of the 2 nd respondent and has not attached any authority or resolution of the 2 nd respondent giving her authority to respond to her petition on behalf of the 2 nd respondent. Further, the said Caroline Kaburia does not represent the 1 st , 3 rd – 5 th respondents and cannot purport to respond to the petition on their behalf.
19. The petitioner contends that the 2 nd respondent admitted that the said picture was on the menu used by the respondents between 2017 and May 2023 which is the period of her complaint. The petitioner states that after her demand letter, she was called in by representatives of the 2 nd respondent and given a verbal apology but the representatives made vague offers for settlement which quickly mutated to threats against her person and she was warned not to proceed further. The said representatives further called he current employer and painted her as an unreliable employee who could cause trouble to employers without good cause.
20. The petitioner argues that unless the court intervenes and finds the respondents breached her constitutional rights and illegally used her image without her consent, the intimidations are likely to persist and her otherwise good reputation as an honest hard-working employee will be tarnished as they have a wide reach in the hospitality industry in the country and region.
21. In response to the replying affidavit sworn by Kevin Esendi Agwona, the petitioner reiterates that the image complained of is different from the ones he allegedly drew and attached to his affidavit.
22. The 2 nd – 5 th Respondents filed a Further Affidavit dated 13 th September 2024 and state that an authority document or resolution is not necessary as the 2 nd – 5 th respondents are not making any claims or seeking any reliefs or orders against the petitioner. The 2 nd – 5 th respondents deny any verbal apology given to the petitioner and further state that during the interactions with the petitioner in May 2023, the 2 nd respondent formed the view that the petitioner was trying to extort money from them and thus broke all form of communication.
23. The 2 nd – 5 th respondents aver that they do not know the petitioner’s employer and nor did they call the said employer.
24. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
25. The petitioner submitted that she has no issues with the mural painted at the hotel walls but her compliant was her image was used on the hotel menu which was presented to customers in hardcopy and on the respondents’ website from October 2017 to May 2023. The petitioner argued that a person’s inherent dignity and privacy are protected under Articles 28 and 31(c) of the Constitution of Kenya.
26. Article 28 Constitution provides:-
Every person has inherent dignity and the right to have that dignity respected and protected.
27. Article 31 Constitution provides:-
Every person has the right to privacy, which includes the right not to have-
Information relating to their family or private affairs unnecessarily required or revealed..
28. Reliance was placed on the case of Coalition for Reform and Democracy (CORD) (no citation given) where the court discussed the right to privacy and elaborated:-
The concept of right to privacy demarcates for the individual realms or dimensions that he needs in order to be able to enjoy individual freedom exacted and legally safeguarded in modern societies.
29. Further holding that:-
Protecting privacy is necessary if an individual is to lead an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic, pluralistic society. The importance of privacy to the individual and society certainly justifies the conclusion that it is a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part.
30. Further in Joel Mutuma Kirimi & another vs National Hopsital Insurance Fund (NHIF) [2020] eKLR quoted with approval, the decision in the case of T .O.S vs Maseno University & 3 Others [2016] eKLR where Chemitei J held that:-
From the above reasoning and expositions of the law it is clear that publication or use of the images of an individual without his consent violates that person's right to privacy. I say so because a person's life is a restricted realm in which only that individual has the power of determining whether another may enter, and if so, when and for how long and under what conditions.
31. In the case of Osiari vs SMEP Microfinnance Bank Limited (Petition E062 of 2022) [2024] KEHC 5626 (KLR) (Constitutional and Human Rights) (23 May 2024) the court agreed with the position held in Wanjiru vs Machakos University (Petition E021 of 2021) [2022] KEHC 10599 (KLR) (3 August 2022) (Judgment) while considering the question of breach of privacy:-
The factors to consider when determining whether the right to privacy has been violated are whether the information was obtained in an intrusive manner; whether it was about intimate aspects of the applicant’s personal life; whether it involved data provided by the applicant for one purpose which was then used for another; whether it was disseminated to the press or the general public or persons from whom the applicant could reasonable expect such private information would be withheld.
32. Further the Court associated itself with the opinion of the European Court of Human Rights in Von Hannover vs Germany (No. 2) (Nos. 40660/08 and 60641/08) where it was held that:-
Regarding photos, the Court has stated that 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 (see Reklos and Davourlis vs Greece cited above. 40)
33. The petitioner argued that her photo on the front page of the respondents’ hotel menu was distinctive and clearly showed the image of her serving hotel products which was intended to portray her in service of the 2 nd respondent on behalf of all the respondents as contrasted to any other competitor of the hotel. That notwithstanding, the petitioner argued that even if the photograph and image was taken at will, there was never any agreement and consent that the same could be used for advertisement purposes.
34. The petitioner submitted that she proved her image was on the respondents’ hotel menu pursuant to Section 107 of the Evidence Act in their hard copy menus and a soft copy posted at their website https://www.marriot.com/en-us/hotels/nbofp-four-points-nairobi hurlingham/dining/ and thus the onus shifted to the respondents to explain whose image they described to wear a red t-shirt and black long trousers.
35. The petitioner submitted that following the exposure by using her image has made it difficult for her to work at any other premier hotel in the country or region without her image being recognized and the advertising image at the 2 nd respondent’s hotel. Further, it has effectively confined the growth of her in the industry for a cumulative period of 8 years during which her image was made and used by the respondents to advertise their products. Thus, she seeks both exemplary and consolatory damages. To support her contentions, the petitioner relied on the case of Obongo & Another vs Municipal Council of Kisumu [1971] EA 91 and submitted that the respondents used her image to grow and benefit their business. Thus the damages of Kshs. 35 million would be appropriate compensation.
The 2 nd – 5 th Respondents’ Submissions
36. The 2 nd – 5 th respondents identified two preliminary issues for determination being the authority of Caroline Kaburia to swear affidavits on behalf of the respondents and the admissibility of without prejudice communication and information.
37. On the first issue, the respondents submitted that there is no rule or established practice specifying that an affidavit filed in a constitutional petition must be filed together with the authority authorising the deponent, or that such authority be filed in court. The deponent Caroline Kaburia indicated that she is the Senior Human Resource Manager of the 2 nd respondent duly authorized to make affidavits on behalf of the 2 nd , 3 rd , 4 th , and 5 th respondents. Furthermore, her capacity as the Senior Human Resource Manager of the respondent was not disputed. The respondents placed reliance on the decision in Makupa Transit Shade Limited & Another vs Kenya Ports Authority & Another [2015] eKLR where the Court of Appeal held:-
In our view, the authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issue at hand who have been so authorised by it. It was therefore sufficient for the deponents to state that “they were duly authorised.” It was then up to the appellants to demonstrate by evidence that they were not so authorised.
38. The respondents further submitted that any person duly authorized and seized of relevant information pertaining to proceedings can swear affidavits in the proceedings. Reliance was placed in the decision in Obonyo Walter Oneya & Another vs Jackline Anyango Ogude (Suing as the administrator of the Estate of Fredrick Odhiambo Sewe (Deceased) [2018] eKLR where the learned judge in dealing with the issue of the capacity of the deponent held as follows:-
Any authorized officer of the insurer would be seized of information pertaining to the proceedings in the primary suit and any appeal lodged against the decision or decree arising therefrom and has capacity to swear an affidavit in either the suit or the appeal. In any case, there is no law that provides that only co-litigants can swear affidavits in a matter. In my view, any person with information relevant to an action and who is duly authorized can swear an affidavit in the action.
39. Further in Njuguna Ngugi vs Godfrey Adhiambo Oyoo [2021] eKLR the court held as follows: -
Even if the insurance company is not a party to the suit, it has a legally recognized interest in the matter and I see no good reason why its staff who have knowledge about the dispute cannot swear affidavits in relation to the case…… Pauline Waruhiu has averred about what she knows about the dispute and what she has been informed by the counsel on record for the insured. She can be summoned for cross-examination and in my view she is competent to swear the affidavit in support of the application. I do find that the application is properly supported by two affidavits.
40. The respondents submitted that since they are not making any claims or seeking any reliefs against the petitioner, an authority document or resolution from them is not necessary.
41. On the second issue, the respondents submitted that communication exchanged on a without prejudice basis in a bid to settle a dispute is generally inadmissible. To buttress this point, reliance was placed on Section 23(1) of the Evidence Act and the case of Milicent Wambui vs Naiorbi Botanica Gardening Limited [2013] eKLR where it was held that:-
The application revolves around “without prejudice” communication. The use of the term ‘without prejudice’ is used by parties as a means to enable offers and counter offers to be made to settle disputes or claims without fear that the said letters would later be used by the opposite party as an admission of liability in the ensuing lawsuit. The words “without prejudice” impose upon the communication an exclusion of use against the party making the statement in subsequent court proceedings. It is a well-established rule that admissions, concessions or statements made by parties in the process of trying to resolve a dispute cannot be used against that party if the dispute is not resolved thus resulting in litigation. A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. For correspondence between parties to be protected it must be made in a genuine attempt to settle a dispute between the parties.
42. The respondents further relied on the case of Mumias Sugar Co. Ltd & Another vs Beatrice Akinyi Omondi [2016] eKLR in which the Court of Appeal cited with authority the case of Oceanbulk Shipping and Trading SA vs TMT Asia Limited & 3 Others [2010] UKSC 44 on the legal principles of “without prejudice” rule in a majority decision of the Supreme Court of the United Kingdom, the judges stated:-
The approach to without prejudice negotiations and their effect has undergone significant development over the years. Thus the without prejudice principle, or, as it is commonly called, the without prejudice rule, initially focused on the case where negotiations between two parties were regarded as without prejudice to the position of each of the parties in the event that the negotiations failed. The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations. The underlying principle of the rule was that parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute.
43. The respondents argued that the petitioner produced the correspondence between them in May 2023 yet the said communication was exchanged on a without prejudice basis. Further the said communication was for the purposes of understanding the petitioner’s claim in a bid to explore a mutual settlement.
44. The respondents submitted that the petitioner failed to exhaust the available avenues for addressing her grievances as provided under Section 56 of the Data Protection Act . The respondents relied on Article 159(2)(d) of the Constitution and the case of Mwangi & another vs Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) (19 July 2022) in which the learned judge, Macharia J held as hereunder:-
The Petition is anchored on the use of personal data without the consent of the Petitioners. The issues raised in the Petition are extensively covered in the Data Protection Act, 2019……
In view of the foregoing, I find that the Petitioners have not sufficiently demonstrated why the Petition ought to be exempted from the exhaustion rule. I am inclined to find that the Petition is barred by the doctrine of exhaustion.
45. The petitioners argued that the petitioner has not alleged or proved that she lodged any complaint on the alleged infringement of her right to privacy with the Data Commissioner. Thus, the respondents urged the court to find that the petition is barred by the doctrine of exhaustion.
46. The respondents identified six issues for determination in the main petition and submitted on the first issue of whether they violated the petitioner’s right to privacy and dignity under Articles 28 and 31 of the Constitution. Citing Articles 28 and 31 of the Constitution, the respondents submitted that the petitioner failed to prove that her photograph was used by them in the restaurant menu as she cannot prove that she is indeed the person in the restaurant menu and subsequently cannot prove violation of her privacy rights or breach of her right to human dignity. The respondents submitted that under Section 2 of the Data Protection Act, an identifiable image of a person refers to a representation, photograph, or depiction in which a person can be reasonably recognized based on specific personal attributes. To buttress this point, reliance was placed in the Ugandan Case of Asege Winnie vs Opportunity Bank (U) Ltd & Another HCCS No. 756 of 2013 which was cited with authority in the case of Shiverenje Simani vs Star Newspaper & Another [2021] eKLR where the High Court set the test and held that an action based on infringement of image rights will succeed if the plaintiff can show and prove three things:-
The first is that he or she is identifiable or that his or her identity is revealed to the public in the photograph.
Second, he or she must show that the action of the defendant was deliberate.
Third, that the defendant’s action was driven by the need for commercial gain.
47. The respondents argued that in the instant case, such identifiability is absent as the image in question is hazy that it becomes nearly impossible to ascertain the identity of the person depicted. Further, without the ability to clearly recognize or differentiate the individual, the claim for infringement fall short. Reliance was placed on Von Hannover vs Germany (No. 2) the European Court of Human Rights held:-
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…
48. Further reliance was placed in Jessica Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR whereby privacy, dignity, identity and reputation were defined as facets of personality and that the tort of misappropriation of personality can be invoked when all of the following four elements are met:-
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.
The person is clearly identifiable in the medium used and to their respective community or communities.
The person does not consent to the use of their personality.
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).
49. The Court further stated that the key elements of a claim which a petitioner must establish in a case of unlawful use of name or image 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 or 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 a 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.
50. The respondents further submitted that the petitioner failed to prove contravention or violation of her rights under the Constitution and she further failed to adduce any evidence to demonstrate how the same have been manifested. The respondents supported their contentions with the decision in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR as follows:-
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his
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1. The petition dated 26 th July 2023 is supported by the petitioner’s affidavit in support of even dated and Further Affidavit dated 28 th June 2024.
2. The petition challenges the respondents use of the petitioner’s image without her consent in their hard copy restaurant menus and on their website from October 2017 to May 2023.
3. On this premise, the petitioner seeks the following relief:-
a) A declaration be and is hereby issued that the respondent violated the petitioner’s fundamental right to privacy and human dignity under article 28 and 31 of the Constitution by publishing the petitioner’s image for purpose of commercial advertisement without the petitioner’s consent.
b) A declaration be and is hereby issued that the respondents violated the petitioner’s right under Article 30 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.
c) A declaration be and is hereby issued that the petitioner’s intellectual property rights, right to publicity and personality rights were infringed when the respondents decided to publish the petitioner’s image in advertising and marketing the hotel products and services offered for financial gain without seeking authority/consent from the petitioner.
d) An order of permanent injunction be and is hereby used restraining the respondents from publishing and/or using the petitioner’s image and likeness in their advertisements or promotions in any way without the petitioner’s consent.
e) An order that the respondents be compelled to compensate the petitioner with payment of Kshs. 35,000,000/- in damages and/or arising from the publication of the petitioner’s photograph without her express authority.
f) General damages for malicious damage for exploitation of the petitioner by the respondents for financial gain.
g) Any other relief that the court deems fit to grant.
h) Costs of the petition.
4. The 2 nd respondent filed replying affidavits dated 22 nd and 23 rd February 2024 in opposition to the petition and a Further Affidavit dated 13 th September 2024.
The Petitioner’s Case
5. The petitioner is a female adult of sound mind residing within the Republic of Kenya. The 1 st respondent is an American multinational company with its headquarters in Bethesda, Maryland, USA, that operates, franchises and licences lodging including hotels, residential and timeshare properties. The 2 nd , 3 rd , 4 th & 5 th respondents are companies duly registered in Kenya under the Companies Act of Kenya whose principal offices are at Nairobi Kenya. The 1 st respondent operates a hotel franchise in Nairobi Kenya in the name and style of Four Points by Sheraton and the 2 nd to 5 th respondents are the owners of the 1 st respondent’s franchise hotel in Nairobi otherwise operating under the name and style of Four Points by Sheraton, Nairobi Airport situated near Jommo Kenyatta International airport.
6. The petitioner states that between September 2017 and June 2019, she was employed by the 2 nd – 4 th respondents to work at the Four Points by Sheraton Nairobi Airport at the services department of the said hotel. In the course of her employment, she realised that the respondents had taken a photograph of her without her consent and were using it on their online menu at their restaurant.
7. The petitioner further states that she humbly requested the respondents to pull down her image from the restaurant menu but they declined. After she left employment, she discovered that the respondents were still using her photograph depicting her serving customers in their online menu as well as the printed copy menus provided to their customers, advertising and marketing of the various products offered by the respondents.
8. The petitioner depones that she conducted a further online search and discovered that the online menu was shared across all the hotels, outlets and franchise of the 1 st respondent and advertisement of all the services and products offered to their customers at the Nairobi Airport Hotel. She further noted that the picture must have been taken without her knowledge or consent while she was quietly working for the respondents between the years 2017 and 2019. She further depones that the main motive of using her image was to give the hotel products and services visibility which would yield more profits in terms of the many customers who were being targeted for the said menus and advertisement across the world, thereby giving the said products commercial speech.
9. Upon writing to the respondent to seek an explanation why they were using her image to advertise and promote their hotel products, the respondents expressly admitted to using her image and photograph as has been its practice and indicated that they would instead compensate her. The petitioner contends that the respondent’s use of her image has resulted in people, especially the various customers she has served in different hotels, her subsequent employers and peers assuming that she is working in partnership with the respondents as their brand ambassador, which is not the case.
The 2 nd – 5 th Respondents’ Case
10. The respondents aver that the 3 rd , 4 th and 5 th respondents are shareholders in the 2 nd respondent. Further, they are separate and independent legal entities and they do not have any management or operational responsibilities/roles within the 2 nd respondent’s hotel business.
11. The respondents confirm that the petitioner is a former employee of theirs who served them in various capacities at the hotel between September 2017 and June 2019. The respondents aver that the petitioner left the hotel in June 2019 after her employment came to a lawful end. The respondents aver that the petitioner has never had any legal or other relationship or interaction with the 3 rd , 4 th and 5 th respondents. Thus, the petitioner’s allegations that the 3 rd , 4 th and 5 th respondents were her employers are baseless. The respondents depone that they are not aware of any legal relationship or interaction that the petitioner has had with Marriot Bonvoy.
12. The respondents state that in October 2017, their hotel opened a roof top bar and grill restaurant known as “Tazama” (the restaurant) which had a hard copy of food and drinks menu. Between October 2017 and May 2023, the menu contained a picture that included a hazy image of an unidentifiable person in a red t-shirt and black trousers and the artwork on one of the restaurant’s walls, which comprised a mural with an image of an unidentifiable person’s face. The respondents contend that the images referred to above are not of the petitioner and the basis upon which she alleges that they are her images is unclear. Further, it is impossible to assign the images referred to above to any specific person and to draw a conclusion thereon.
13. The respondents aver that they did not take, use or publish any photograph or image of the petitioner in the manner alleged. Further, the respondents aver that the foundational requirement for a claim of infringement of image, dignity and privacy rights is that the impugned image ought to be definitively and objectively identifiable as the complainant’s image, which is not the case herein.
14. The respondents admit that between 19 th and 25 th May 2023, they exchanged email correspondence after the petitioner served them with a demand letter dated 15 th May 2023, on a strictly without prejudice basis in a bid to understand what the claim in the demand letter related to and whether it could be mutually settled. Despite the correspondence being on a without prejudice basis, the petitioner has produced the same herein which is contrary to law and ought to be expunged. That notwithstanding, the respondents avers that they did not admit liability for the petitioner’s claims that were contained in the demand letter.
15. In support of their case, the respondents filed a Replying Affidavit dated 22 nd February 2024 sworn by Kevin Esendi Agwona who is a visual and graffiti artist with a leaning towards spray painted murals. The deponent states that in June 2017 he was approached by Mr. Shreya Karia, a representative of the 2 nd respondent, who was interested in getting him to paint a mural at the Four Points by Sheraton Hotel located at Jommo Kenyatta International Airport. It was agreed between them that he prepare a sketch of the proposed mural and sent it to him for the 2 nd respondent to review which he did on 10 th June 2017. The notable feature of the sketch was the portrait of a female face.
16. The deponent states that the 2 nd respondent approved the sketch albeit with some suggested changes and then instructed him to proceed to paint a mural at the hotel. The deponent further states that he accepted the assignment at a fee of Kshs. 160,000/- and painted the mural at the hotel based on the sketch and customer changes and when he completed it he took a photograph of it and posted it in the portfolio page on his website. The deponent avers that the sketch and mural were the work of his hands and he created the portrait of the female face without reference to any photograph or image of an existing person.
17. The deponent further avers that he does not know the petitioner; he has never been introduced to her; he has never seen a photograph of her and he painted the mural using the method and under the circumstances described above.
18. The petitioner filed a Further Affidavit dated 28 th June 2024 and states that Caroline Kaburia is not a director of the 2 nd respondent and has not attached any authority or resolution of the 2 nd respondent giving her authority to respond to her petition on behalf of the 2 nd respondent. Further, the said Caroline Kaburia does not represent the 1 st , 3 rd – 5 th respondents and cannot purport to respond to the petition on their behalf.
19. The petitioner contends that the 2 nd respondent admitted that the said picture was on the menu used by the respondents between 2017 and May 2023 which is the period of her complaint. The petitioner states that after her demand letter, she was called in by representatives of the 2 nd respondent and given a verbal apology but the representatives made vague offers for settlement which quickly mutated to threats against her person and she was warned not to proceed further. The said representatives further called he current employer and painted her as an unreliable employee who could cause trouble to employers without good cause.
20. The petitioner argues that unless the court intervenes and finds the respondents breached her constitutional rights and illegally used her image without her consent, the intimidations are likely to persist and her otherwise good reputation as an honest hard-working employee will be tarnished as they have a wide reach in the hospitality industry in the country and region.
21. In response to the replying affidavit sworn by Kevin Esendi Agwona, the petitioner reiterates that the image complained of is different from the ones he allegedly drew and attached to his affidavit.
22. The 2 nd – 5 th Respondents filed a Further Affidavit dated 13 th September 2024 and state that an authority document or resolution is not necessary as the 2 nd – 5 th respondents are not making any claims or seeking any reliefs or orders against the petitioner. The 2 nd – 5 th respondents deny any verbal apology given to the petitioner and further state that during the interactions with the petitioner in May 2023, the 2 nd respondent formed the view that the petitioner was trying to extort money from them and thus broke all form of communication.
23. The 2 nd – 5 th respondents aver that they do not know the petitioner’s employer and nor did they call the said employer.
24. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
25. The petitioner submitted that she has no issues with the mural painted at the hotel walls but her compliant was her image was used on the hotel menu which was presented to customers in hardcopy and on the respondents’ website from October 2017 to May 2023. The petitioner argued that a person’s inherent dignity and privacy are protected under Articles 28 and 31(c) of the Constitution of Kenya.
26. Article 28 Constitution provides:-
Every person has inherent dignity and the right to have that dignity respected and protected.
27. Article 31 Constitution provides:-
Every person has the right to privacy, which includes the right not to have-
Information relating to their family or private affairs unnecessarily required or revealed..
28. Reliance was placed on the case of Coalition for Reform and Democracy (CORD) (no citation given) where the court discussed the right to privacy and elaborated:-
The concept of right to privacy demarcates for the individual realms or dimensions that he needs in order to be able to enjoy individual freedom exacted and legally safeguarded in modern societies.
29. Further holding that:-
Protecting privacy is necessary if an individual is to lead an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic, pluralistic society. The importance of privacy to the individual and society certainly justifies the conclusion that it is a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part.
30. Further in Joel Mutuma Kirimi & another vs National Hopsital Insurance Fund (NHIF) [2020] eKLR quoted with approval, the decision in the case of T .O.S vs Maseno University & 3 Others [2016] eKLR where Chemitei J held that:-
From the above reasoning and expositions of the law it is clear that publication or use of the images of an individual without his consent violates that person's right to privacy. I say so because a person's life is a restricted realm in which only that individual has the power of determining whether another may enter, and if so, when and for how long and under what conditions.
31. In the case of Osiari vs SMEP Microfinnance Bank Limited (Petition E062 of 2022) [2024] KEHC 5626 (KLR) (Constitutional and Human Rights) (23 May 2024) the court agreed with the position held in Wanjiru vs Machakos University (Petition E021 of 2021) [2022] KEHC 10599 (KLR) (3 August 2022) (Judgment) while considering the question of breach of privacy:-
The factors to consider when determining whether the right to privacy has been violated are whether the information was obtained in an intrusive manner; whether it was about intimate aspects of the applicant’s personal life; whether it involved data provided by the applicant for one purpose which was then used for another; whether it was disseminated to the press or the general public or persons from whom the applicant could reasonable expect such private information would be withheld.
32. Further the Court associated itself with the opinion of the European Court of Human Rights in Von Hannover vs Germany (No. 2) (Nos. 40660/08 and 60641/08) where it was held that:-
Regarding photos, the Court has stated that 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 (see Reklos and Davourlis vs Greece cited above. 40)
33. The petitioner argued that her photo on the front page of the respondents’ hotel menu was distinctive and clearly showed the image of her serving hotel products which was intended to portray her in service of the 2 nd respondent on behalf of all the respondents as contrasted to any other competitor of the hotel. That notwithstanding, the petitioner argued that even if the photograph and image was taken at will, there was never any agreement and consent that the same could be used for advertisement purposes.
34. The petitioner submitted that she proved her image was on the respondents’ hotel menu pursuant to Section 107 of the Evidence Act in their hard copy menus and a soft copy posted at their website https://www.marriot.com/en-us/hotels/nbofp-four-points-nairobi hurlingham/dining/ and thus the onus shifted to the respondents to explain whose image they described to wear a red t-shirt and black long trousers.
35. The petitioner submitted that following the exposure by using her image has made it difficult for her to work at any other premier hotel in the country or region without her image being recognized and the advertising image at the 2 nd respondent’s hotel. Further, it has effectively confined the growth of her in the industry for a cumulative period of 8 years during which her image was made and used by the respondents to advertise their products. Thus, she seeks both exemplary and consolatory damages. To support her contentions, the petitioner relied on the case of Obongo & Another vs Municipal Council of Kisumu [1971] EA 91 and submitted that the respondents used her image to grow and benefit their business. Thus the damages of Kshs. 35 million would be appropriate compensation.
The 2 nd – 5 th Respondents’ Submissions
36. The 2 nd – 5 th respondents identified two preliminary issues for determination being the authority of Caroline Kaburia to swear affidavits on behalf of the respondents and the admissibility of without prejudice communication and information.
37. On the first issue, the respondents submitted that there is no rule or established practice specifying that an affidavit filed in a constitutional petition must be filed together with the authority authorising the deponent, or that such authority be filed in court. The deponent Caroline Kaburia indicated that she is the Senior Human Resource Manager of the 2 nd respondent duly authorized to make affidavits on behalf of the 2 nd , 3 rd , 4 th , and 5 th respondents. Furthermore, her capacity as the Senior Human Resource Manager of the respondent was not disputed. The respondents placed reliance on the decision in Makupa Transit Shade Limited & Another vs Kenya Ports Authority & Another [2015] eKLR where the Court of Appeal held:-
In our view, the authority, as with other corporate bodies, has its affidavits deponed on its behalf by persons with knowledge of the issue at hand who have been so authorised by it. It was therefore sufficient for the deponents to state that “they were duly authorised.” It was then up to the appellants to demonstrate by evidence that they were not so authorised.
38. The respondents further submitted that any person duly authorized and seized of relevant information pertaining to proceedings can swear affidavits in the proceedings. Reliance was placed in the decision in Obonyo Walter Oneya & Another vs Jackline Anyango Ogude (Suing as the administrator of the Estate of Fredrick Odhiambo Sewe (Deceased) [2018] eKLR where the learned judge in dealing with the issue of the capacity of the deponent held as follows:-
Any authorized officer of the insurer would be seized of information pertaining to the proceedings in the primary suit and any appeal lodged against the decision or decree arising therefrom and has capacity to swear an affidavit in either the suit or the appeal. In any case, there is no law that provides that only co-litigants can swear affidavits in a matter. In my view, any person with information relevant to an action and who is duly authorized can swear an affidavit in the action.
39. Further in Njuguna Ngugi vs Godfrey Adhiambo Oyoo [2021] eKLR the court held as follows: -
Even if the insurance company is not a party to the suit, it has a legally recognized interest in the matter and I see no good reason why its staff who have knowledge about the dispute cannot swear affidavits in relation to the case…… Pauline Waruhiu has averred about what she knows about the dispute and what she has been informed by the counsel on record for the insured. She can be summoned for cross-examination and in my view she is competent to swear the affidavit in support of the application. I do find that the application is properly supported by two affidavits.
40. The respondents submitted that since they are not making any claims or seeking any reliefs against the petitioner, an authority document or resolution from them is not necessary.
41. On the second issue, the respondents submitted that communication exchanged on a without prejudice basis in a bid to settle a dispute is generally inadmissible. To buttress this point, reliance was placed on Section 23(1) of the Evidence Act and the case of Milicent Wambui vs Naiorbi Botanica Gardening Limited [2013] eKLR where it was held that:-
The application revolves around “without prejudice” communication. The use of the term ‘without prejudice’ is used by parties as a means to enable offers and counter offers to be made to settle disputes or claims without fear that the said letters would later be used by the opposite party as an admission of liability in the ensuing lawsuit. The words “without prejudice” impose upon the communication an exclusion of use against the party making the statement in subsequent court proceedings. It is a well-established rule that admissions, concessions or statements made by parties in the process of trying to resolve a dispute cannot be used against that party if the dispute is not resolved thus resulting in litigation. A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. For correspondence between parties to be protected it must be made in a genuine attempt to settle a dispute between the parties.
42. The respondents further relied on the case of Mumias Sugar Co. Ltd & Another vs Beatrice Akinyi Omondi [2016] eKLR in which the Court of Appeal cited with authority the case of Oceanbulk Shipping and Trading SA vs TMT Asia Limited & 3 Others [2010] UKSC 44 on the legal principles of “without prejudice” rule in a majority decision of the Supreme Court of the United Kingdom, the judges stated:-
The approach to without prejudice negotiations and their effect has undergone significant development over the years. Thus the without prejudice principle, or, as it is commonly called, the without prejudice rule, initially focused on the case where negotiations between two parties were regarded as without prejudice to the position of each of the parties in the event that the negotiations failed. The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations. The underlying principle of the rule was that parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute.
43. The respondents argued that the petitioner produced the correspondence between them in May 2023 yet the said communication was exchanged on a without prejudice basis. Further the said communication was for the purposes of understanding the petitioner’s claim in a bid to explore a mutual settlement.
44. The respondents submitted that the petitioner failed to exhaust the available avenues for addressing her grievances as provided under Section 56 of the Data Protection Act . The respondents relied on Article 159(2)(d) of the Constitution and the case of Mwangi & another vs Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) (19 July 2022) in which the learned judge, Macharia J held as hereunder:-
The Petition is anchored on the use of personal data without the consent of the Petitioners. The issues raised in the Petition are extensively covered in the Data Protection Act, 2019……
In view of the foregoing, I find that the Petitioners have not sufficiently demonstrated why the Petition ought to be exempted from the exhaustion rule. I am inclined to find that the Petition is barred by the doctrine of exhaustion.
45. The petitioners argued that the petitioner has not alleged or proved that she lodged any complaint on the alleged infringement of her right to privacy with the Data Commissioner. Thus, the respondents urged the court to find that the petition is barred by the doctrine of exhaustion.
46. The respondents identified six issues for determination in the main petition and submitted on the first issue of whether they violated the petitioner’s right to privacy and dignity under Articles 28 and 31 of the Constitution. Citing Articles 28 and 31 of the Constitution, the respondents submitted that the petitioner failed to prove that her photograph was used by them in the restaurant menu as she cannot prove that she is indeed the person in the restaurant menu and subsequently cannot prove violation of her privacy rights or breach of her right to human dignity. The respondents submitted that under Section 2 of the Data Protection Act, an identifiable image of a person refers to a representation, photograph, or depiction in which a person can be reasonably recognized based on specific personal attributes. To buttress this point, reliance was placed in the Ugandan Case of Asege Winnie vs Opportunity Bank (U) Ltd & Another HCCS No. 756 of 2013 which was cited with authority in the case of Shiverenje Simani vs Star Newspaper & Another [2021] eKLR where the High Court set the test and held that an action based on infringement of image rights will succeed if the plaintiff can show and prove three things:-
The first is that he or she is identifiable or that his or her identity is revealed to the public in the photograph.
Second, he or she must show that the action of the defendant was deliberate.
Third, that the defendant’s action was driven by the need for commercial gain.
47. The respondents argued that in the instant case, such identifiability is absent as the image in question is hazy that it becomes nearly impossible to ascertain the identity of the person depicted. Further, without the ability to clearly recognize or differentiate the individual, the claim for infringement fall short. Reliance was placed on Von Hannover vs Germany (No. 2) the European Court of Human Rights held:-
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…
48. Further reliance was placed in Jessica Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR whereby privacy, dignity, identity and reputation were defined as facets of personality and that the tort of misappropriation of personality can be invoked when all of the following four elements are met:-
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.
The person is clearly identifiable in the medium used and to their respective community or communities.
The person does not consent to the use of their personality.
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).
49. The Court further stated that the key elements of a claim which a petitioner must establish in a case of unlawful use of name or image 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 or 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 a 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.
50. The respondents further submitted that the petitioner failed to prove contravention or violation of her rights under the Constitution and she further failed to adduce any evidence to demonstrate how the same have been manifested. The respondents supported their contentions with the decision in Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR as follows:-
Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his
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