[2023] KEHC 18915 (KLR)

Bundi v Kenya Methodist University (Civil Case E003 of 2021) [2023] KEHC 18915 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 18915 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Case E003 of 2021

EM Muriithi, J

June 22, 2023

Between

Claris Kinya Bundi

Plaintiff

and

Kenya Methodist University

Defendant

Judgment

1. By a plaint dated 2/3/2021, the Plaintiff sued the Defendant seeking:a.A declaration that the Defendant’s acts of publishing the Plaintiff’s image for purpose of commercial advertisements without her consent is a violation of the Plaintiff’s fundamental rights to privacy and human dignity.b.An order of injunction compelling the Defendant to pull down the advertisement publications featuring the Plaintiff’s image on its social media pages to wit, Facebook, Twitter and any other website.c.An order of Permanent injunction restraining the Defendant from publishing and/or using the Plaintiff’s image in any of its advertisements or posting and reposting the Plaintiff’s image in any of its social media and websites without the Plaintiff’s consent.d.General damages for breach of Plaintiff’s right to human dignity and privacy.e.Cost of the suit.

2. The Plaintiff averred that on or about 9/11/2020, the Defendant, without her consent, authority and/or permission caused her picture to be published for commercial advertisement, advertising the Defendant’s 20th graduation ceremony, courses that it would offer in the year 2021 and promoting 2021 January intake in its Facebook account https:www.facebook.com/KeMUKenya on the link https:www.facebook.com/KeMUKenya/photos/3580964131961108 and in its Twitter official account Kenya Methodist University @ kemukenya https:twitter.com/kemukenya/status/1325685313210097667. She further averred that on diverse dates between 5/11/2020 and 23/11/2020, the Defendant caused to be erected at its main entrance a bill board bearing her image advertising its 20th graduation ceremony, courses that it would offer in the year 2021 and promoting 2021 January intake without her consent, authority and/or permission. On diverse dates in the month of November 2020, the Defendant without her consent, authority and/or permission caused her picture to be published for commercial advertisement, advertising its 20th graduation ceremony, courses that it would offer in the year 2021 and promoting 2021 January intake on its brochures. She averred that the photographic image used by the Defendant was a photo obtained from her private Facebook account, and the Defendant never bothered to obtain her consent, offer monetary compensation to the use of the image for its commercial advertisement with a view of promoting its 20th graduation ceremony, promoting courses it offered in its 2021 calendar, promoting January 2021 intake dubbed #Congratulationstothegraduatingclassof2020 #TheFutureisHere #January2021Intakeongoing #Applynow

3. The Plaintiff averred that the Defendant’s social media platforms i.e Facebook and Twitter are accessible to millions of people and the commercial advertisements indeed attracted a lot of public attention. The unauthorized use of her image by the Defendant resulted into breach of her right to human dignity and privacy as protected by the Bill of Rights under the Constitution. By reason of the Defendant’s infringement aforesaid, she has suffered a violation of her rights to privacy, professional degradation and her standing in the society has been affected. The Defendant’s actions amounted to commercial exploitation of her personal images motivated by greed and a need to earn maximum profits at no expense at all.

4. The Defendant vehemently denied the claim through its defence and counterclaim dated 23/6/2021. It counter claimed that:a.The Plaintiff’s suit be dismissed in entiretyb.Judgement be entered against the Plaintiff for the loss incurred to reprint the graduation booklets.c.Judgment be entered for general damages against the Plaintiff for breach of contract.d.Costs be awarded to the Defendant.e.Interest be payable thereon at court rates from the date of the filing of this defence and counterclaim until payment in full.

Evidence 5. PW1 Gladys Kinyua, adopted her statement recorded on 2/3/2021 as part of her evidence in chief. She testified that, “I am in business. I graduated on 12. 10. 2019. My image was used in 2020 graduation the year after I had graduated. I did not give consent to have the picture used. They requested for my consent after they had already used my image and the bill boards were erected. I refer the Defendant’s list of documents dated 23. 6.2021. Documents no. 2 are screen shots of conversation between plaintiff and the defendants. This is the communication I received from the university. The communication was after the 2020 graduation. I do not remember the exact date but it was in November 2020. They communicated to me after the Graduation after the use of the image. The communication was on 17/11/2021. It was after the graduation, and did not consent to the use of my image. The photograph is not being used today but the last time I checked it was still being used. The use of my image has affected me being people thinking that I am awarded as the brand ambassador for the university and I am not. The photograph was taken at Gatimene from my photographer Isaac in 2019 immediately I took my gown for graduation. It was for my own use. I did not give them to the school but I posted the photographs in my social media plat form. I do not know how Kemu got to get my image. Certificate of electronic evidence dated 6. 3.2021 by the Plaintiff. The photographs that I have attached. I would like to produce them as exhibits. Documents on Plaintiffs copies of documents listed, dated 2/3/2021 Demand Notice, Photographs and social media pages, photograph of a bill board and I pray to produce the documents as exhibits. Plaintiff exhibits 1 (a) – (c) and produced as exhibits. Bill-board:- I used my mobile phone to take the photo. I have the certificate of electronic evidence dated 2. 3.2021. Certificate PExh. No. (2). I pray that the court to grant relief prayed in the plaint.”

6. On cross examination, she stated that, “Photograph was taken by my photographer Isaac. I have not listed Isaac as a witness. Photograph on social media account. The face book and social media handles belong to the school. I produced photographs some of which were there during the 2020 graduation. The Defendant has not seen your photograph on the social media platform. Many people saw the photograph on social media platform. One person called Lyn saw the photograph. Is she a witness? She is not a witness before the court. Defendant raked in large commercial returns. Do you know how much the defendant made? I do not know how much the University made for the use of the photograph. Consent sought after the graduation. Yes. Photograph used is a brochure. It was a booklet. Have you seen the graduation booklet? After the photographs were taken I put them on my social media platform. When you graduated did you ever get a photograph taken by one David? No. I haven’t had a photograph taken by Mr David. Bill board was erected outside the school at Kemu. I do not know who erected the bill board. I think it is the school because the same photograph was what was running at the graduation ceremony. The bill-board is in the Plaintiff’s documents. When did you report to the Defendant that you had an issue with the photograph? It was after I saw the image in the pamphlet of 2020 graduation. I reported immediately I saw it. I said I was not okay with the photograph being there. A specific date? I can only remember that it was during the graduation period. It was during the period that I had communicated with my university. Who did you report to? Dr Maore. The rest of the communication followed. Is there any other person who ever saw the bill board? Yes, I have one Lyn. I have not included her as one of the witness. Official Booklet of 2020. I have been shown this. My issue was on the soft copy before it was printed. It is in the same booklet that I entered into communication.”

7. On re-examination, she stated that, “Bill boards indicates the dates of the graduation only. I raised an issue with this university. After interacting the student no issue on consent. Gains by University? I think the university gained by getting more students in the next admission. I confirm that it is my photograph in the billboard. Defendant social nature Account: I am sure it was their website as I was not in school and I used to log in.”

8. DW1 Dr Stephen Maore, the Director University Advancement and Marketing of the Defendant adopted his stamen dated 15. 6.2021 as part of his evidence in chief. He testified that, “I am aware that I am in the case on a suit of Claris Kinya Bundi. Documents in list of documents dated 23. 6.2021. I wish to rely and produce the documents as exhibits. I produce the booklet and screenshots of conversations between the plaintiff and the defendant. I pray the court to dismiss the case on the evidence that I have produced for in my statement.”

9. On cross examination, he stated that, “I have my job card to show that I am the Director of Advancement and Marketing with KEMU university. [Witness produces card]. Graduation was on 14. 11. 2020. I am in charge of events and media relations and materials used. We sold graduation booklet for publicity. On social media did you advertise for graduation? We advertised in the pamphlets and in the newspapers. We also advertised in the social media. It is the ICT person who deal with social media. (List of documents of PEx No. 2 and 3 – photographs. Photograph. Bill board photograph - I do not recall the bill board. We usually hang them only on graduation. Each committee with different things – protocol committee. [It is put to witness that billboard was put at entrance of university]. I cannot confirm about the photograph. I was based in Nairobi. I have to confirm from the officers on the ground. We have been having a problem with social media. I cannot confirm that the social media handle is official. I talked to Claris Kinya on text. I got to see her in court. I spoke to her on phone and text. I talked to her on 14. 11. 2020 on the day of graduation. During the graduation preparations our teams use previously taken graduand photographs and select the best for use on the graduation booklet and any other publicity material. We have been doing it since the university started. Our team get in contact with the person and informs the person. This is the part where the lady got to know about her photo being used by the university. Her image was one of selected photographs. You communicated with the Plaintiff? I communicated to her on 17. 11. 2020. It was a follow up conversation. Did she issue a consent? No and that was why I withdrew her photograph from the graduation booklet. The booklet is usually prepared after the graduation. I confirm that the photograph on the bill board is the photograph which was selected for use in the booklet. I confirm that it is the photograph. The graduation was virtual so I did not attend Kemu graduation. I may not know what was happening at the entrance of the university. You are asking for consent from the plaintiff having reached objective? There was no consent and that is why I withdrew her photo from the graduation booklet.”

10. DW2 Elsy Kananu Rimiri, the marketing officer of the Defendant adopted her statement of 31. 5.2021 as part of her evidence in chief. She testified that, “I had engaged a photographer in the…….course of things at the university. I had issued a pass car to David Gitari. When photographs taken – Photographs in said events they give photographs to the Marketing Department of the university and these photographs are used in the subsequent events of university. A part from the photographs from the photographer we receive other photographs from other photographers engaged and press. Once students graduate we celebrated the alumni by using provided material. We do receive requests from students to use their photographs in publication material and we also request students to give us their photographs for the same purpose. I last engaged Mr Gitari in 2019 graduation. The photograph which I got from Mr Gitari. We selected some photograph and we use them in subsequent graduation. We selected many photographs. We received consent from the students to use their photographs but some students declined. I recall one student who declined. This is Claris Kinya the plaintiff in this case. Before printing the graduation booklet, Ms Claris Kinya refused to give her consent. By this time, we had clearly done a pre-design which was published. We normally printed the design and we asked the students for their consent and if they decline we remove the image before printing. I reported to Dr. Maore in the Marketing Department. Dr. Maore is involved in the process. He is the one who gives guidance in the entire process. Costs of reprinting graduation booklets when Claris Kinya declined to give consent to use her photograph, we had to re-do the booklet. This involves costs of reprinting. Have been in contact with Mr Gitari since 2019? I contacted Mr Gitari when the issue was filed in court. I also spoke to him yesterday. I was asking him whether he was travelling to Meru. He said he would not travel because he is afraid of intimidation by the plaintiff. I have asked the court to dismiss the plaintiff’s case.”

11. On cross examination, she stated that, “I am marketing officer at Kemu. I do not have anything with me to show that I am the Marketing Officer at Kemu. I engaged Mr Daniel Gitari. He is a professional photographer who was also a student at the University. I do not know whether he has a photographic studio. [Witness is referred to plaintiff’s list of documents photographs 2, 3 and 4]. I confirm the photographs are the ones that were submitted to in the soft. It is the photograph of Claris Kinya the plaintiff herein. They were submitted by David Gitari. Ms. Kinya declined to give consent for use of her photograph in the graduation booklet. When was the consent sought? It was before the 2020 graduation ceremony. [Witness is referred to document at no. 2 of the list of documents of the plaintiffs]. I am not the one who send the communication in the screen shots attached. The request for consent is usually done by Dr Maore. I did not interact with the issue of evidence at any time. Market department I worked for by then was in Meru. In 2020 graduation, I was situated at Meru. Bill Board mentioned at entrance of the University? [Witness was referred to list of documents No. 3] i am not aware that the bill board was erected at the entrance. I did not see it. It was virtual graduation as it was during covid time. I am not able to confirm that this is the surrounding of the Bill board area. I am not the head of marketing. We have an ICT personal who post in social media with approval by the Head of the Department, Dr. Maore. [Witness is referred to No. 2 screen shots] I may be able to tell what is posted on the social media of the university. [Screen shots of plaintiff on face book page] I am not aware of the facebook. We changed the booklet after the Plaintiff declined consent to use her image. We don’t have the changed booklet in court. Celebrating the alumni with photos is – protocol matters. We were printing the 2020 graduation before the consent was declined. Hashtag of January 2021 ongoing. It is the culture of the university to inform clients of subsequent intake. There was a hash tag of 2021 ongoing and apply now. With the hashtag we were encouraging people to enrol. There were some people who attended the graduation. But there was virtual attendance. I was watching the ceremony on the TV. [Paragraph 8 of statement of the plaintiff]. Withdraw on all social media pages. She did not give consent. It may be a mistake and that it was a pre-design. Paragraph 9 – costs of reprinting of pamphlet. It is redesigning nor reprinted. The pamphlets were not printed. Consent issue discussed with Mr Maore? Dr Maore is the one who made the follow up. We did not discuss issue until he was called to appear in court. He told me the student had declined. Counter claim and breach of an agreement – I am not aware that the university is suing for breach of contract. I do not know the plaintiff.”

12. On re-examination, she stated that, “Photographs on social media – I did not place any of social media photographs. Preparation of graduation booklet – we engage an external designer to design the artwork. It is Dr. Maore who approve the design and giving instructions for printing. The consent of the content was given by the marketing department. I was involved in giving the content I gave the photograph in this suit together with the materials. I am not aware of the contracted process between Dr Maore and the printers.”

Submissions 13. The Plaintiff submitted that she reserves the right to determine who may or may not have access to her photograph, and the Defendant’s use of her image just because it was on a social media platform, was a serious intrusion and contravened her right to privacy, and cited JWI & Another v Standard Group Limited & Another (2015) eKLR, Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others (2017) eKLR, TOS v Maseno University & 3 Others (2016) eKLR, Republic v Kenya National Examinations Council & Another Ex-Parte Audrey Mbugua Ithibu (2014) eKLR, Kennedy v Ireland (1987) I.R. 587 and Purity Wangechi Njogu v WPP-Scangroup Ltd & 2 Others (2019) eKLR. She urged that an award of Ksh. 5,000,000 as general and exemplary/punitive damages would be justified, for the breaches of her rights to privacy and human dignity, and cited Joel Mutuma & Anor v National Health Insurance Fund (NHIF) (2020) eKLR and MWK v Attorney General & 3 Others (2017) eKLR.

14. The Defendant submitted that the Plaintiff’s image was procured through its duly accredited photographer who was authorized to take photos during its 19th graduation ceremony which took place on 12/10/2019. It urged that when the Plaintiff declined to give her written consent for the use of her image, it immediately removed her image from the soft copy graduation booklets and destroyed the ones already printed before publication of the same. It accused the Plaintiff of failing to either show that it made any commercial gains from the use of her photo or establish the nexus between it and the referenced social media accounts. It urged that it engaged the Plaintiff prior to publishing her photo in the graduation booklet who undertook to furnish it with a written consent, and cited Abdulkadir Shariff Abdirahim & another v Awo Shariff Mohammed T/A A.S. Mohammed Investments (2014) eKLR and Angela Wells v Atoll Media (PTY) Ltd & anor, Western Cape High Court Case No. 11961/2006. It faulted the Plaintiff for failing to demonstrate that her image was used by the Defendant for commercial purposes and most importantly without her consent, and cited Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others (2015) eKLR and Ahmed Issack Hassan v Auditor General (2015) eKLR. It urged that the photos produced by the Plaintiff were not in mandatory compliance with sections 78A and 106B of the Evidence Act on admissibility of electronic evidence and records, and cited Republic v Barisa Wayu Mataguda (2011) eKLR, Richard Nyagaka Tong’i v Independent Electoral & Boundaries Commission & 2 others (2013) eKLR and County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others (2015) eKLR. It urged that it entered into an oral agreement with the Plaintiff to utilize her image for mutual benefit, and the Plaintiff’s failure to deliver a written consent caused it to suffer loss and incur expenses. It urged the court to award it general damages for the loss and unjustifiable financial strain occasioned to it by the Plaintiff, and cited Boniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR and Peter Umbuku Muyaka v Henry Sitati Mmbasu (2018) eKLR. It prayed for the reliefs in the counterclaim to be granted and the plaint to be dismissed with costs, and cited NWR & another v Green Sports Africa Ltd & 4 others (2017) eKLR.

Analysis and Determination 15. After her graduation in 2019, the Plaintiff procured the services of a professional photographer to take her image for her personal use. Little did she know that her said image would later on be used by the Defendant to advertise their 20th graduation ceremony and the subsequent January 2021 intake without her consent. The Defendant further erected a bill board with the Plaintiff’s image outside its school gate and posted the image on its official social media accounts. She testified that, “My image was used in 2020 graduation the year after I had graduated. I did not give consent to have the picture used. They requested for my consent after they had already used my image and the bill boards were erected…The use of my image has affected me being people thinking that I am awarded as the brand ambassador for the university and I am not.” Even on thorough cross examination, she restated that her consent was sought after the graduation and the image was used in the official 2020 booklet.

16. DW1 stated on cross examination that, “Graduation was on 14. 11. 2020. I am in charge of events and media relations and materials used. We sold graduation booklet for publicity. We advertised in the pamphlets and in the newspapers. We also advertised in the social media. I talked to Claris Kinya on text. I talked to her on 14. 11. 2020 on the day of graduation. During the graduation preparations our teams use previously taken graduand photographs and select the best for use on the graduation booklet and any other publicity material. We have been doing it since the university started. Our team get in contact with the person and informs the person. This is the part where the lady got to know about her photo being used by the university. Her image was one of selected photographs. You communicated with the Plaintiff? I communicated to her on 17. 11. 2020. It was a follow up conversation. Did she issue a consent? No and that was why I withdrew her photograph from the graduation booklet. The booklet is usually prepared after the graduation. I confirm that the photograph on the bill board is the photograph which was selected for use in the booklet.”

17. DW2 testified that, “We selected some photograph and we use them in subsequent graduation. We received consent from the students to use their photographs but some students declined. I recall one student who declined. This is Claris Kinya the plaintiff in this case. Before printing the graduation booklet, Ms Claris Kinya refused to give her consent. By this time, we had clearly done a pre-design which was published. We normally printed the design and we asked the students for their consent and if they decline we remove the image before printing.”

18. In her subsequent testimony, DW2 confirmed that she was the one who submitted the Plaintiff’s image for use in the 2020 graduation booklet. Although she stated they were forced to change the graduation booklet after the Plaintiff declined to give consent for her image to be used, the changed booklet was not produced as exhibit in court. She further confirmed that the hash tags of January 2021 Intake ongoing and apply now were meant to encourage people to enroll.

19. This court finds that the Plaintiff has proved on a balance of probabilities that the Defendant used her image on its 2020 graduation booklet, without her consent. Evidence was led that the Defendant conducted its 20th graduation ceremony on 14/11/2020, where graduation booklets containing the Plaintiff’s image were supplied to the congregation. In an attempt to sanitize its illegal use of the Plaintiff’s image in the graduation booklet/pamphlet without her consent, DW1 wrote to the Plaintiff on 17/11/2020 and 20/11/2020, long after the graduation ceremony, where he purportedly sought her consent, which was declined.

20. This court finds that the Defendant is liable for the use of the Plaintiff’s image to advertise its 20th graduation ceremony and the January 2021 intake, without her consent. There is no doubt that the said use violated the Plaintiff’s right to privacy under Article 31 of the Constitution and she was entitled to compensation. Article 31 provides as follows:“31. PrivacyEvery person has the right to privacy, which includes the right not to have—a.their person, home or property searched;b.their possessions seized;c.information relating to their family or private affairs unnecessarily required or revealed; ord.the privacy of their communications infringed.”

21. The Court does not, however, see how the use of the photograph violated the Plaintiff’s right to dignity which is entrenched in the Constitution in the following terms:-“28. Human dignityEvery person has inherent dignity and the right to have that dignity respected and protected.”There was no evidence of violation of the inherent dignity of the plaintiff. Indeed, in dealing with the Plaintiff, the Defendant clearly respected her right to give consent and approached her for the same before use of her photograph.

22. However, in a bid to escape liability for its actions, the Defendant has alluded to an oral agreement where the Plaintiff consented to the use of her image for the mutual benefit of the parties. It even claims general damages for breach of the said agreement after the Plaintiff withheld her consent. The Court does not find on a balance of probabilities the existence of such an agreement for use of the photograph. Indeed, the alleged change of photograph was occasioned by the failure to obtain ex post facto the Plaintiff’s consent to the use of the Photograph.

23. In Ann Njoki Kumena v KTDA Agency Ltd (2019) eKLR the court (L. W. Gitari J) awarded general damages of Ksh.1,500,000 for infringement of the right to privacy in circumstances where the court reasoned that the “the purpose for which the photograph was used which was for commercial purposes, a reasonable award ought to be given to the plaintiff. I find that an award of Ksh.1,500,000 is reasonable in the circumstances.” In M W K & another v Attorney General & 3 others (2017) eKLR, the court (John M. Mativo J. as he then was) awarded the first petitioner general damaged of Kshs.4,000,000 for violation of her constitutional rights to dignity, degrading treatment and privacy.

24. In this case, only the right to privacy is shown to have been violated in a billboard and the publication made on the Defendant’s official social media accounts to wit Twitter and Facebook calling for student enrolment but the court has no evidence of any commercial benefit accruing on account of the use of the photograph and the award of Ksh.500,000/- is sufficient compensation.

ORDERS 25. Accordingly, for the reasons set out above, the court finds that the Plaintiff’s case is merited and makes the following orders:a.A declaration that the Defendant’s acts of publishing the Plaintiff’s image for purpose of commercial advertisements without her consent is a violation of the Plaintiff’s fundamental right to privacy.b.An order of injunction compelling the Defendant to pull down the advertisement publications featuring the Plaintiff’s image on its social media pages to wit, Facebook, Twitter and any other website.c.An order of Permanent injunction restraining the Defendant from publishing and/or using the Plaintiff’s image in any of its advertisements or posting and reposting the Plaintiff’s image in any of its social media and websites without the Plaintiff’s consent.d.General damages of Five Hundred Thousand (Ksh.500,000) for breach of Plaintiff’s right to privacy.e.The Defendant’s counterclaim is without merit and it is dismissed.f.The Plaintiff shall have costs of the suit and the counterclaim together with interest at court rates.Order accordingly.

DATED AND DELIVERED THIS 22ND DAY OF JUNE, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Hiram Kirimi & Co. Advocates for the Plaintiff.Adrian Kamotho Njenga & Co. Advocates for the Defendant.