Ndirangu v Nation Media Group Ltd & another (Civil Case E149 of 2020) [2026] KEHC 11132 (KLR) (Civ) (22 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E149 OF 2020** **CAROLINE WAMBUI NDIRANGU……………….............PLAINTIFF** **-VERSUS-** **NATION MEDIA GROUP LTD ……………..………..…1ST DEFENDANT** **JOSEPH KANYI ….……………………………...….……2ND DEFENDANT** **JUDGMENT** **Pleadings** 1. By a plaint dated **19/09/2020**, **Caroline Wambui Ndirangu** *(hereafter the Plaintiff)* sued **Nation Media Group Ltd** and **Joseph Kanyi** *(hereafter the 1st & 2nd Defendant/Defendants)* seeking judgment as against the Defendants by way of-; 2. *A declaration that the Defendants offensive publication to commercialize the images of the Plaintiff did breach and violate the Plaintiff’s image rights.* 3. *A declaration that the continued offensive publication of the Plaintiff’s image by Defendant does violate the Plaintiff’s image by the Defendant does violate the Plaintiff’s image rights.* 4. *A declaration that the continued publication of the photograph depicting Plaintiff by the Defendant despite being informed of the same by the Plaintiff and further served with a demand letter raises a new claim of violation of image rights each day the demand notice is ignored.* 5. *A declaration that the Defendant offensive publication to advertise or commercialize its activities as from 2013 did violate the Plaintiff’s Data Rights.* 6. *A declaration is made in favour of the Plaintiff that the continued storage of the Plaintiff’s image by the Defendants does violate her Data Rights.* 7. *A declaration is made in favour of the Plaintiff that the continued publication of the photograph depicting the Plaintiff by the Defendant despite being served with demand raises a new claim for violation of privacy rights each day the demand notice is ignored.* 8. *General damages in favour of the Plaintiff for the violation of the Image Rights and or Data Rights as from 2013-2019 when the Defendants were served with the demand letter.* 9. *General damages in favour of the Plaintiff for the continued violation of image rights and or data rights of the Plaintiff as of January 06, 2020 being after the Defendant was served with the demand letter to December 10, 2019.* 10. *Costs of the suit.* 11. *Any other relief that the Court may deem just and fit to grant.* 12. The Plaintiff averred that as from the year 2013 to 2020, the Plaintiff discovered her picture was being used by the 1st Defendant over its telecommunication based commercial articles, which the Plaintiff has since 2013 been engaging with the Defendant under protest to address the breach of her image rights that are equally constitutionally protected however the Defendants have been ignoring the same. 13. That on further conducting an online search on domain under **“Business Daily”**, “**Daily Nation”** and **“The East African”**, owned and or managed by the 1st Defendant, learnt of the fact that there was extensive breach of her image rights as a result of the commercial posts that are made by the 1st Defendant all using photographs, depicting the Plaintiff. 14. It is further averred that the Plaintiff on seeing the photographs recalled that the picture must have been taken by the 2nd Defendant when the Plaintiff requested the 2nd Defendant in 2013 to take some pictures which were to be delivered to the Plaintiff for purposes of handling her Jewelry Business. 15. That while the Plaintiff acknowledges that the picture concerning her beadwork was authorized for commercial use in favour of the 2nd Defendant, the right did not extend to an image depicting the Plaintiff on a rooftop around a satellite and usage by third-party. 16. The Plaintiff goes on to say that in breach of her image rights, the Defendants took possession of the photograph and used it for commercial purposes therefore violating the Image Rights and Data Rights owed to the Plaintiff. 17. The **Defendants** filed a statement of **defence dated 09/08/2023** admitting to publication of telecommunication-based articles in the year 2013 however deny the other key averments in the plaint. They further aver that the use of any pictures taken bore no limitation as to usage and were not limited to the Plaintiff’s jewelry business either as alleged or at all therefore the Plaintiff’s claim is bad in law, incurably defective, an abuse of the Court process and at an opportune moment shall seek to have the suit struck out. 18. The suit proceeded to full hearing during which both parties called evidence in support of the averments in their respective pleadings. **Plaintiff’s Evidence** 1. The Plaintiff testified as **PW1**. She began by adopting her witness statement dated 14/09/2020 as her evidence in chief meanwhile adduced into evidence the documents appearing in her list of documents dated 14/09/2020, 22/06/2021 & 12/07/2021 as **Pexh.1 – 10.** 2. The gist of her evidence is that the Defendant illegally and unlawfully continued to utilize her image or likeness for commercial purposes whereas despite demand, the Defendants have refused to cease the usage of her image or likeness in their publications. In light of the above she urges the Court to award her damages in the sum of Kshs. 3,285,000,000/- on accord of the Defendants breach of her image and data rights for at least 2,160/- days. 3. **On cross-examination**, it was her evidence that her image was used without her consent, to wit, if her image was utilized for commercial purposes without her consent, she ought to be compensated for the same. She maintained that despite the photographs having been taken by consent, the verbal agreement was that they ought not to have been used for commercial purposes. 4. She stated that after her picture was first published by the 1st Defendant in 2013, she protested the same by way of text messages to the 2nd Defendant in 2017. 5. The 2nd Defendant who at the time was an employee of the 1st Defendant approached her in 2012, as a friend, to take photos of her image or likeness whereafter the 2nd Defendant kept the said series of images taken and commercially utilized them without her consent. 6. She maintained that the consent issued to the 2nd Defendant to take her picture was specific to her beadwork and that she was equally to utilize the images to advertise her beadwork business. That the photos belonged to her and were not to be utilized by any other third-party. 7. Meanwhile, she confirmed that despite seeking Kshs. 3 Billion in compensation she did not quantify in her pleadings how she arrived at the said figure. She concluded by stating that her likeness was not taken for commercial purposes save for promoting her business, of which she continues to pursue, despite being a resident in Oman. 8. **In re-examination,** she stated that her agreement was specifically with the 2nd Defendant, to wit, her photos were purely taken on a friendship basis and not for commercial purposes. Despite the aforestated, her image was later used in an article published in the 1st Defendant’s newspaper. **Defendants Evidence** 1. On behalf of the Defendants, **Sekuo Owino**, the 1st Defendant’s General Counsel, testified as **DW1** meanwhileproceeded to adopt his witness statement dated 24/02/2025 as his evidence in chief. 2. It was his evidence that the Plaintiff’s image was not used for any advertisement and or commercial purpose. That in the present matter the Plaintiff consented to the 2nd Defendant taking photos of her likeness for an article that was to be published in 2012 and not for commercial use as purported. 3. Therefore, it was on the basis of the latter's consent that the use of her image was sustained for journalistic purposes as per provisions of the law. 4. He maintained that given the Plaintiff’s image was processed for publication of literary or artistic material, and given her admission on consent to take her likeness, for purposes of publishing her beadwork, the sustained use of her image was protected by the **Data Protection Act**. 5. He concluded by stating that given that the Plaintiff’s image was not utilized for commercial purposes, its publication complied with the law and journalistic practice. 6. **On cross-examination**, he stated that the Plaintiff consented to her photograph being taken whereas any publication of a person’s likeness was by consent. That in his opinion it would appear that the Plaintiff is now prevaricating on the issue of consent yet she had an understanding with the 2nd Defendant on use of her image. 7. **In re-examination,** while referring to the conversation between the Plaintiff and 2nd Defendant, he stated that in his opinion the latter seemed to have been promoting the Plaintiff’s business, to wit, it now seems that there is misunderstanding. 8. He concluded by stating that the 2nd Defendant received no financial gain from the 1st Defendant, in respect of publication of the Plaintiff’s image. 9. At the close of the trial, parties were accorded an opportunity to file submissions. Both parties duly complied. **Plaintiff’s Submissions** 1. Counsel began his submissions by setting out history of the matter, meanwhile condensed his submissions in six (6) cogent issues. Addressing the Court on whether the Plaintiff granted lawful and valid consent to the Defendants to use, store, process, or publish the impugned image? Counsel argued that the Plaintiff image rights protect an individual's exclusive right to control the commercial use of his or her image. 2. That liability arises where a Defendant uses a protected attribute of a person's identity for commercial purposes without consent whereas consent under the **Data Protection Act** must be express, informed, voluntary and unequivocal, and that publication of a person's image without consent violates the right to privacy. 3. It was further submitted that **Articles** **28** and **31(a) & (c)** of the **Constitution** safeguards dignity and privacy therefore the Plaintiff’s evidence only established consent for the beadwork photograph whereas the impugned rooftop photograph was never authorized. That the latter is further buttressed by the Defendants own witness who admitted that consent was only in respect of one photograph. 4. Counsel went on to argue that the Defendants are bound by their pleadings and cannot enlarge the scope of the admitted consent, to wit, the Plaintiff’s evidence clearly demonstrates her objection to publication and that the 2nd Defendant routinely photographed individuals without obtaining authority. That once publication was admitted, the burden shifted to the Defendants to prove consent, which they failed to do. 5. The decision in **Proactive Sports Management Ltd v Wayne Rooney & 3 Others [2010] EWHC 180** as cited in **Simani v Star Newspaper & Another [2021] KEHC 13582 (KLR), NWR & Another v Green Sports Africa Ltd & 4 others [2017] KEHC 8765 (KLR), Jessica Clarise Wanjiru v Davinci Aesthetic & Reconstruction Centre & 2 Others [2017] KEHC 9230 (KLR),** **Mwonga & 4 others v Ogega & another [2024] KEHC 16469 (KLR), Samson Mumo Mutinda v Inspector General National Police Service & 4 Others [2014] KEHC 7142 (KLR)** as cited in **Miller v Sonko & another [2022] KEHC 16533 (KLR), T.O.S v Maseno University & 3 Others [2016] KEHC 6436 (KLR)** as cited in **Joel Mutuma Kirimi & Another v National Hospital Insurance Fund (NHIF) [2020] KEHC 8542 (KLR), Independent Electoral & Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] KECA 890 (KLR)** and **Karugaba vs Attorney General [2003] 2 EA 489** as cited in **Mutuku Ndambuki Matingi vs Rafiki Microfinance Bank Limited [2021] KEHC 9059 (KLR)**were cited in cumulative support of the above arguments. 6. Addressing the Court on whether the Defendants used an aspect of the Plaintiff’s identity that is protected? While calling to aid the decisions in **NWR & Another** (supra) and **JWI & Another v Standard Group Ltd & Another [2015] KEHC 7398 (KLR),** it was summarily contended that the Plaintiff image and likeness constitute protected personality rights, to wit, Courts within our jurisdiction recognizes personality rights as protecting an individual's name, image, likeness and persona therefore publication of the Plaintiff’s image amounted to unauthorized appropriation of a protected component of her identity. 7. Submitting on whether the 1st Defendant used the Plaintiff’s image for exploitative or commercial purposes, while placing reliance on the South African decision in **Angella Wells v Atoll Media (PTY) Ltd & Anor, Western Cape High Court Case No. 1961/2006** as cited in **Tom Hillary Omondi v Silverstone Air [2019] KEHC 1534 (KLR)** and the decision in **Wambui & Another v Eden Park Country Garden Limited [2025] KEHC 19215 (KLR)**, counsel argued that the impugned image was repeatedly used to enhance the attractiveness and readership of the Defendant's newspaper publications and online platforms. 8. That use of a person's image for the commercial benefit of another constitutes an unjustifiable invasion of privacy. Therefore, the Plaintiff without having to evince proof of actual financial gain has sufficiently demonstrated the Defendants commercial exploitation given the link between her image and the Defendants profit-making enterprise. In the end, the repeated publication of her image without consent or compensation constituted commercial exploitation and infringed both her image rights and privacy. 9. Concerning whether public interest outweighs the Plaintiff’s right to privacy? Counsel accepted that privacy is not absolute however the present case does not fall within any recognized public interest exception. That the use of a person’s image for news reporting is only permissible where there exists a reasonable relationship between the image and a legitimate matter of public interest whereas the publisher must still demonstrate that the impugned publication was not commercially motivated. 10. That here, the Plaintiff being a private citizen, her image was illegally used to illustrate telecommunication-related articles and generate readership, rather than to advance any genuine public interest. The decisions in **T.O.S** (supra), **Jessica Clarise Wanjiru** (supra)and **Simani** (supra) were cited in the above regard. 11. Submitting on the question of general damages, counsel anchored his submissions on the decision in **MWK & Another vs Attorney General & 3 Others [2017] KEHC 1496 (KLR)** to posit that damages ought to be awarded for the infringement of the Plaintiff’s dignity, privacy and image rights. In urging the Court to award **general damages** in the sum of **Kshs. 4,000,000/-** counsel placed reliance on the decisions in **Muindi v Mwandigha [2025] KEHC 15816 (KLR), Mutuku Ndambuki Matingi** (supra) and **GSN v Nairobi Hospital & 2 Others [2020] (KLR).** 12. On whether the Plaintiff is entitled to an award of exemplary damages, it was arguedthat exemplary damages are warranted because the Defendants deliberately continued publishing the impugned image despite receiving a demand. 13. Further, by dint of **Section 2** of the **Data Protection Act,** the Defendants, as data processors, breached their obligations under **Sections 25** and **26** of the Act by processing and repeatedly republishing her image without consent. 14. In urging an award of **Kshs. 500,000/- in exemplary damages,** counsel relied on the English decision in **Rookes v Barnard [1964] AC 1129, Godfrey Julius Ndumba Mbogori & another v Nairobi City County [2018] KECA 702 (KLR)** and **Muindi** (supra). In summation, the Court was urged to allow the suit as prayed. **Defendants Submissions** 1. Likewise, counsel for the Defendants began his submissions by setting out in brief the events leading hereto meanwhile condensed his submission into three (3) salient issues. 2. Addressing the Court on whether the Defendants breached the Plaintiff’s image and data rights? While equally placing reliance on the ingredients set out in **Simani** (supra), concerning where a claimant alleges unlawful use of image rights, counsel conceded that while the Plaintiff’s photo constituted a specific identifier, she failed to prove that the Defendants actions were intentional, unauthorized and for commercial gain when they published the Plaintiff’s image. 3. That the Plaintiff admitted to voluntarily participating in the photo session, requested additional photographs, and produced no agreement restricting the use of the particular images. In any event, the impugned photograph, like the original publication of 09/11/2012, continued to promote the Plaintiff's beadwork business whereas editorial discretion entitled the Defendants to use different photographs depicting the same business. 4. While referencing the WhatsApp communications adduced as exhibits by the Plaintiff, counsel pointed out that the latter demonstrated the 2nd Defendant's genuine belief that the publications promoted the Plaintiff's business rather than exploiting her image. 5. That no tangible evidence was adduced demonstrating the Defendants earned commercial revenue from the impugned publications whereas the latter only demonstrated commercial benefit that accrued to the Plaintiff through publicity of her business. 6. Submitting on whether the Plaintiff is entitled to general damages, counsel maintained that the Plaintiff failed to establish liability and is therefore not entitled to any award on damages. 7. In the alternative, counsel argued that damages should remain compensatory and proportionate, to wit, the award urged by the Plaintiff is excessive and unsupported. While referencing the decision in **Simani** (supra)the Court was instead implored toaward **general damages** in the area of **Kshs. 150,000**/- 8. On whether the Plaintiff is entitled to exemplary damages, while quoting the authors in **Gatley on Libel and Slander, Tenth Edition, pp. 246–250**, counsel contended that exemplary damages are punitive and are only awardable where the Defendant deliberately acts with cynical disregard of the claimant's rights and with the intention of securing profit or other benefit. 9. That in the instant matter, no evidence was adduced that the publication was malicious, profit-driven or calculated to injure the Plaintiff, as such, no factual basis was laid by the Plaintiff for the award urged under the aforestated head. In conclusion, the Court was urged to dismiss the suit or in the alternative award damages as submitted. **Analysis and Determination** 1. The Court has carefully considered the respective parties’ pleadings, the evidence adduced by respective witnesses, and the parties' written submissions, to wit, the Court crystallizes the following as the **Issues for determination-:** 1. *Whether the Plaintiff has made out a case as against the Defendants for breach of her Privacy and Data Rights?* 2. *Whether the Plaintiff is entitled to the relief(s) sought?* 3. *Who ought to bear costs?* ***Whether the Plaintiff has made out a case as against the Defendants for breach of her Privacy and Data Rights?*** 1. At the heart of the suit is a determination whether the Plaintiff has established on a balance of probabilities that the Defendants breached her privacy and data rights when the latter published her photograph. 2. Pertinent to the determination of the said issue are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; **Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91**. 3. Akin to pleadings is evidence in support of the pleadings. The applicable law as to the burden of proof is found in **Section 107, 108** and **109** of the **Evidence Act**. In **Karugi & Another v Kabiya & 3 Others (1987) KLR 347** the Court of Appeal stated that-: *“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”* 1. The undisputed facts, as I gather, the parties herein largely agree that sometime in 2012, the Plaintiff participated in a photo-session undertaken by the 2nd Defendant in connection with a feature promoting her beadwork business. 2. During that session, the 2nd Defendant took a number of the Plaintiff’s photos whereinafter at least one of the photographs was eventually published with the Plaintiff's knowledge in an article promoting her beadwork business in 2012. 3. It is equally not in contention that a photograph depicting the Plaintiff standing on a rooftop while using a mobile phone was subsequently published by the 1st Defendant in its print and online platforms between 2013 - 2019, to wit, in the said photo the Plaintiff is easily identifiable. 4. Upon realization, the Plaintiff objected to the continued publication of the impugned image through communications with the 2nd Defendant and afterward instituted the present proceedings asserting breach of her image, privacy and data rights thus seeks general and exemplary damages for the aforestated breach. 5. With the above facts in reserve, in our present constitutional dispensation, privacy and data protection rights are codified in**Article 31**of the **Constitution**, which provides thatevery 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; or (d) the privacy of their communications infringed. 6. In particular, effect was given to **Article 31(c)** and **(d),** upon enactment of the **Data Protection Act** in **2019** wherein the latterestablished the Office of the Data Protection Commissioner; made provisions for the regulation of the processing of personal data; provided for the rights of data subjects and obligations of data controllers and processors; and for connected purposes. 7. Upon promulgation of the present Constitution, and subsequent enactment of the **Data Protection Act**, the respective constituents of **Sub-Article** **31** and provisions of the **Data Protection Act**, have since been litigated in abundance within our jurisdiction. 8. That said, it would be necessary to point out that the Plaintiff cause of action appears to have preceded, and sustained after the enactment of the **Data Protection Act**. 9. The latter notwithstanding, one of the leading authorities in the sphere of protection of rights under **Article 31(c)** and **(d)** and rendered prior to enactment of the **Data Protection Act**,is the decision by **Mativo, J.** (as he then was)in **Jessica Clarise Wanjiru** (supra). Therein, he pithily observed that-; *“The right to privacy is guaranteed under Article 31 of the Constitution of Kenya, privacy has been defined as ‘the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information. In the above sense any intrusion of personal life by whatever means or form such as photography, written articles or caricatures may be grounds for an action for breach of privacy…* *“The right to privacy consists essentially in the right to live one’s life with minimum interference. It concerns private family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information give or received by the individual confidentially.”* 1. The aforementioned right was earlier discussed by a five (5) judge bench of this Court in **Coalition for Reform and Democracy (CORD) & 2 Others v Republic of Kenya & Another; Director of Public Prosecution & 6 Others (Interested Parties); Law Society of Kenya & Another (Amicus Curiae) [2015] KEHC 7074 (KLR)** wherein it was observed that-: *“The right to privacy is guaranteed under Article 31 of the Constitution.* *………..* *The right to privacy has also been expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It is provided for under Article 12 of the UDHR, Article 17 of the ICCPR, Article 8 of the European Convention on Human Rights (ECHR) and Article 14 of the African Charter on Human and Peoples’ Rights. B. Rossler in his book, The Value of Privacy (Polity, 2005) p. 72, explains the right to privacy as follows:* *“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. Such realms or dimensions of privacy substantialize the liberties that are secured because the mere securing of freedom does not in itself necessarily entail that the conditions are secured for us to be able to enjoy these liberties as we really want to”.* *As to whether there is need to protect privacy, he goes on to write 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.”* 1. As captured elsewhere in this judgment, the Plaintiff’scontention is that though she consented to her likeness and or image being photographed by the 2nd Defendant in 2012, the same was expressly limited to a single photograph depicting her beadwork products for publication in an article promoting her business. 2. That there was no consent on retention, publication or commercial use of the photograph depicting the Plaintiff as standing beside a satellite dish while talking on a mobile phone. That the Defendants repeatedly retained, published and commercially exploited the latter photograph without her consent thereby violating her privacy rights, constitutional right to privacy, dignity and statutory rights under the **Data Protection Act**. 3. Whereas, the gist of the Defendants case, through **DW1,** is that the Plaintiff voluntarily participated in a photographic session, consented to the taking and use of the photographs to promote her beadwork business however failed to establish that the Defendants intentionally or commercially exploited her image without authority. Therefore, the question that begs at this juncture concerns consent in respect of the photograph(s) and their subsequent use after 2012? 1. As can be gathered from the Plaintiff’s adopted witness statement, the 2nd Defendant took a series of pictures of the Plaintiff on condition that he would transfer them to her laptop. Additionally, the Plaintiff states that prior to the taking of extra pictures, she inquired from the 2nd Defendant, whether he would charge for the same, being photos for her personal use in her jewelry business, to wit, the 2nd Defendant confirmed that he would not charge. 2. A perfunctory review of **Pexh.2**, it shows the likeness of the Plaintiff a caption therein that she is using beads to make bangles at her shop in Nyeri town. The article appears as an excerpt of the 1st Defendant publication in its **“Daily Nation”** published on 09/11/2012. Conspicuously, the Plaintiff does not appear to take issue with the latter publication. 3. In retrospect, she takes issue with the subsequent article published by the 1st Defendant between 2013 – 2019, to wit, alongside the aforestated articles is photo depicting the Plaintiff as standing on a rooftop while using a mobile phone. 4. Patently, the Defendants do not deny that the photographs capturing the Plaintiff’s likeness, as contended. Though, what appears to be their argument is that the Plaintiff consented to taking of the photographs to promote her bead work business. 5. The above issue then brings to fore the pertinent question of ownership of the photograph(s) utilized in the 1st Defendant’s publication. In my estimation, photography and usage of the resultant photograph(s), aside from the privacy and data rights components, equally elicit copyright questions. As a person’s likeness and or image may evoke assertible rights within the context of copyright law. 6. Consequently, the authors **Tugendhat and Christie**, in **The Law of Privacy and the Media, 2nd Ed. Oxford, at Pg. 399 & 400**, at **Pg.416 & 417** write that, in English Law, *“the statutory right to privacy only applies to person who commissions a photograph or film ‘for private and domestic purpose’, it does not apply to commissions for commercial purpose, however private, nor to consensual photography short of a commission”*. They further cite questions of consent and waivers of the right as live issues to which the general principles of contract and estoppel are applicable. 7. Meanwhile, the authors **Copinger and Skone James** on **Copyright, 17th Ed**., discussing the Right to Privacy of Certain Photographs and Films in the English Law context state at **Pg. 931** that the commissioning in the foregoing setting must have been for “private and domestic” purposes: “*The words “private and domestic” are conjunctive such that in the English set up a photograph which is commissioned for private but not domestic purposes, for example for purpose relating to a person’s private business affairs*,” will not fall within provisos of English Copyright, Designs and Patents Act, 1988”. 8. Within our jurisdiction, **Section 2** as read alongside **Section 31** of the **Copyright Act**, a photograph is protected as an artistic work, with its author being the person responsible for its composition, while jointly created photographs constitute works of joint authorship where individual contributions are inseparable. Further, as a general rule, first ownership of copyright vests in the creator of the photograph. See also-: **Tugendhat and Christie, The Law of Privacy and the Media, 2nd Ed. Oxford, at Pg. 399** & **400**. 9. However,subject to statutory and equitable exceptions, including where the work is created in the course of employment, in which case the employer is the first owner, or where the circumstances surrounding a commissioned work demonstrate that the parties intended the commissioner to own the copyright. 10. It is not in dispute that the Plaintiff and 2nd Defendant had a *consensus ad idem* concerning the taking of the former’s photo(s) as pertains to the promotion of her beadwork business in 2012. Meanwhile, given the Plaintiff’s evidence there appears to have been no consideration for the 2nd Defendant’s work. 11. Nevertheless, in my view, by conduct it would seem that authorship and or ownership of the photograph(s) taken by the 2nd Defendant, resided with the Plaintiff given her evidence and failure on the part of the Defendants to call the 2nd Defendant as a witness, to deflect the question of authorship or ownership of the photographs. 12. Having settled the aforestated the Court must now revert to the issue of consent and whether the Plaintiff has established that the Defendants intentionally or commercially exploited her data without authority? 13. Here, while the Plaintiff was the commissioner, author, owner and or data subject of the photographs taken by the 2nd Defendant, the latter was to be in possession of the same for a particular purpose, going by the Plaintiffs evidence. 14. At the auspices of enactment of the **Data Protection Act**, it became obligatory of data controllers or data processors to comply with the provisions of the **Act** with due regard to **Section 51** of the **Act**. And as earlier stated, the Defendants continued to publish images of the Plaintiff as recently as December of 2019 going by **Pexh.3**. 15. By his adopted witness statement, **DW1** suggested there being consent towards sustained use of the Plaintiff’s image for journalist purposes as per the provisions of the law. 16. While I agree that the purport of **Section 52(1)** of the **Data Protection Act** was intended tostrike a balance between the right to privacy and the constitutional freedoms of expression, and the media, to wit, the Act in generality may in appropriate cases, impede the dissemination of information that serves the public interest. Hence, **Section 52(1)** of the **Act.** 17. It must however be emphasized that my understanding of the above provision was to create a qualified exemption that would require justification for use of a person’s personal data, such as a photograph or image, to be based on reasonableness and public interest. The necessity of public interest is equally underscored in the **Code of Conduct for the Practice of Journalism** in the **Media Council Act.** 18. That said, a cursory perusal articles appearing in **Pexh.3**, alongside the said photo(s) of the Plaintiff, are various captions such as *“How Westerners benefit by ensuring African Phone calls remain expensive”*, “*No known impact from mobile phones on health: Watchdog*”, “*Outrage greets Safaricom’s caps on data bundles*”, “*News jobs in telecos Sector Increase by 23.8pc*”, “*East Africans enjoy lowest call charges under new initiative*” and “*Events that shaped Kenya*”. 19. In my estimation, the captions as viewed alongside the Plaintiffs photo bore no nexus or co-relation. While the article(s) in question may have concerned issue(s) of public interest, the use of the Plaintiff’s photo or image was of no consequence, given that she was neither the subject of the publication(s) nor was her image analogous to the subject. The latter conclusion is not a vacant supposition, presuming the initial purpose, the Plaintiff’s photo(s) were taken in the first place. 20. In equal measure, I do consider that the publication(s) may not have been explicitly for commercial purposes or benefit for the Defendants, to thus invoke the imposition of consent as provided for in **Section 32(1)** as read with **Section** **37(1)** of the **Data Protection Act**. Given my preceding finding, the burden of proof still lay at the Defendants doorstep, in demonstrating that the Plaintiff’s consent towards usage of her photograph, image or likeness, in the context in which it was used, was obtained. 21. The aforestated brings to mind the rendition in **NWR & Another v Green Sports Africa Ltd & 4 others [2017] KEHC 8765 (KLR)** wherein the Court observed 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.* *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, body or recognizable body part, voice or voice impersonation, photograph, look-alike, signature phrase, paraphernalia or action, costume or personals signature.* *Personality rights, generally speaking, consist of two types of rights, the right to privacy and the right of publicity. The right of privacy is the right to keep one’s image and likeness from exploitation without permission or compensation and generally applies to members of the general public. The right of publicity is the exclusive right of an individual to market his or her image, likeness, or persona for financial gain.”* 1. In any event, as rightly argued by the Plaintiff, it may well be that the Plaintiff’s image was used to attract readers and or generate online traffic in the Defendant’s websites. Still no iota of evidence in my estimation was adduced concerning any purported intent towards massaging increased readership or online traffic, was commercially motivated. 2. Consequently, the Court having reasonably addressed itself to the raft of the above issues, it is this Court’s extrapolation that the Plaintiff has made out a case that the Defendants were in breach of her privacy and data rights. A finding is therefore made that the Defendants publications in respect of the Plaintiff image, photograph and or likeness as from 2013 were in violation of the latters’ constitutional and statutory rights on privacy and data. ***Whether the Plaintiff is entitled to the relief(s) sought?*** 1. Alongside numerous declaratory relief(s) sought in the plaint, of which the preceding finding substantially disposes of, the Plaintiff also sought general damages. However, I note that from her submissions, the Plaintiff likewise sought exemplary damages, which was vehemently opposed by the Defendants. 2. It has been settled since **Galaxy Paints Co. Limited v Falcon Guards Limited [2000] 2 EA** **385**, that the issues for determination in a suit generally flow from the pleadings and a trial Court can only pronounce judgement on the issues arising from the pleadings. 3. The Plaintiff did not plead exemplary damages in her pleadings. Therefore, on the backdrop of the above exhortation any pronouncement on the same would be in excess of the scope of what was sought for by the Plaintiff. 4. Reverting back to the question of damages, it is trite that where a party has successfully demonstrated violation of his constitutional and or statutory rights an award of damages is recoverable. See-: **Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR).** Further to the forestated, I also note that statutory compensation by way of damages is envisioned under **Section 65** of **Data Protection Act.** 5. Meanwhile, this Court concurs with the posiiton in **Peter Mauki Kaijenga & 9 Others v Chief of the Defence Forces & Another [2019] KEHC 7530 (KLR)** wherein it was observed that -: *“Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion….. Arriving at the award of damages is not an exact science. No monetary sum can really erase the scarring of the soul and the deprivation of dignity that some of these violations of rights entailed…….. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation. The comparable common law measure of damages will often be a useful guide in assessing the amount of this compensation. However, this measure is no more than a guide, because the award of compensation is discretionary and, moreover, the violation of the constitutional right will not always be coterminous with the cause of action in law.* 1. With the above principles in reserve, the Court had earlier in this judgment set out the respective parties’ submissions on the question of damages. That said, having carefully considered the fact that as of 2017 the 2nd Defendant was alive to the Plaintiff’s reservation on use of her photograph, the nature & duration of violation, the persuasive decision in **Muindi** (supra)**, Mutuku Ndambuki Matingi** (supra), **GSN** (supra) and **Simani** (supra) as relied on by the respective parties’, together with comparable awards made by superior Courts, I believe the figures as proposed by the Plaintiff and Defendants, appear to be inordinately high and low respectively. 2. Therefore, considering the totality of the aforestated, an award in the sum of Kshs. 1,000,000/**-** would suffice as general damages in the circumstance. **Final Disposition** 1. The Court has sufficiently addressed itself to the matter before it, the upshot and final orders are that the Plaintiff’s suit succeeds in the following terms-; 2. *A declaration hereby issues that the Defendants publication of the Plaintiff’s image as from 2013 did breach and violate the Plaintiff’s Privacy and Data Rights.* 3. *A declaration hereby issues in favour of the Plaintiff that the continued storage by the Defendants, of the Plaintiff’s image, photo and or likeness, for purpose(s) of publication absent of her consent does violate the Plaintiff’s Privacy and Data Rights.* 4. *General damages hereby issues in the sum of Kshs. 1,000,000/- in favour of the Plaintiff for violation of her Privacy and Data Rights.* 5. *Interest on the above will accrue from the date of judgment until payment in full.* 6. *The Plaintiff is awarded costs of the suit.* **Orders accordingly.** **Delivered Dated and Signed at Nairobi this 22nd day of July 2026.** **……………………….** **JANET MULWA.** **JUDGE**