https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7781

Githinji v Muhindi Mweusi Supermarket Limited (Civil Case E003 of 2025) [2026] KEHC 7781 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7781 (KLR) Republic of Kenya In the High Court at Thika Civil Case E003 of 2025 FN Muchemi, J May 28, 2026 Between Joyce Caroline Munjiru Githinji Plaintiff and Muhindi Mweusi Supermarket Limited Defendant Judgment 1.The plaintiff has instituted this suit vide plaint dated 16th November 2023 praying for judgment against the defendant for:-a.A declaration that the defendant has violated the plaintiff’s right to privacy and inherent dignity.b.A permanent injunction restraining the defendant either by itself, its employees, servants, agents, officers, representatives from using the plaintiff’s image, likeness and any reproductions or adaptations containing the plaintiff’s image in any medium of communication for purposes of advertising its products without the plaintiff’s consent.c.General damages.d.Costs of the suit and interest. 2.The matter proceeded by way of viva voce evidence. The Plaintiff’s Case 3.PW1, the plaintiff adopted her witness statement dated 16th November 2023 and testified that she was an employee of the defendant until 26th august 2023 when she resigned from employment. The witness further testified that she advised the defendant to cease using any materials that bore her image for purposes of advertising as she was not receiving any financial benefit yet the defendant was deriving immense business from it. Despite the said instructions, the defendant maintained her images on its Facebook page advertising its products which circulated in its branches countrywide without her consent and in blatant violation of her constitutional rights to privacy and dignity. The defendant only pulled down her image on Facebook on 19th October 2023 after the plaintiff’s advocates sent a demand letter to them. 4.The witness stated that on 18th September 2023, the defendant erected a conspicuous billboard at Witeithie along Thika Nairobi Highway depicting her image to advertise its products without her consent. The said billboard was removed on 24th October 2023. 5.On cross examination the plaintiff testified that she was employed by the defendant on 13/12/2022 and she signed an employment contract on 23/7/2023 and further left employment on 7/08/2023. She further testified that the signatures on the documents forged as she did not sign the letter dated 29/08/2023 or contract of employment dated 23/08/2023. The witness further testified that the billboard was erected after she confirmed that the photo was okay on 19/09/2023. 6.PW2, John Karanja adopted his witness statement dated 16th November 2023 and testified that he was the husband of the plaintiff. He testified that the plaintiff was employed by the defendant until 26th August 2023 when she resigned from employment. The witness testified that PW1 advised the defendant to cease using any materials that bore her image for purposes of advertising its products on its Facebook platform as she was not receiving any financial benefits for the same yet the defendant was deriving immense business profit from the unauthorised advertisements. 7.PW2 testified that on 18th September 2023, the defendant erected a conspicuous billboard at Witeithie along Thika Nairobi Highway depicting the plaintiff’s image to advertise its products without her consent. The defendant said it pulled down PW1’s image on 19th October 2023 after her advocates wrote a demand letter to the defendant while the billboard was removed on 24th October 2023. 8.On cross examination, PW2 testified that he was not aware that PW1 gave her consent for her photos to be used by the defendant. He further testified that the plaintiff tried to negotiate for financial benefits for use of her photos but the talks hit a dead end. 9.DW1 was the defendant’s main witness. He Simon Karanja adopted his witness statement dated 18th June 2024 and testified that he is the operations manager of the defendant. He further testified that the plaintiff’s images were used with her knowledge, express consent and approval. On 23rd August 2023, the defendant’s human resource department sent a letter to the plaintiff seeking consent for the use of her photographs for the official use on their social media posts and related promotional materials. DW1 testified that the said letter explicitly explained the circumstances of the engagement by the defendant and requested the plaintiff, if agreeable to the request to reply to the letter with her consent. The witness further testified that the plaintiff was aware of the request and acknowledged receipt of the letter dated 23rd August 2023 from the defendant by appending her signature on the document and the plaintiff responded to the request and granted the defendant her express consent to use her images vide letter dated 23rd August 2023. 10.DW1 testified that pursuant to the plaintiff’s consent, the defendant instructed its advertisers, Look Media Limited to prepare promotional materials and pay for the rent of the billboard for the months of September, October and November 2023. DW1 further testified that PW1, after her consent, attended a photoshoot where her pictures were taken and on 4th September 2023, when the image to be used for the billboard was printed and sent to the plaintiff via her WhatsApp number 0791282634 for approval. The plaintiff said the image was okay and that it looked good. The witness further stated that the plaintiff never withdrew her consent for the use of her images and neither did she communicate to the defendant to pull down the images when the said images were uploaded. 11.The defendant witness further stated that upon receipt of the demand letter dated 19th October 2023 from the plaintiff’s advocate, the defendant proceeded forthwith to delete the image on Facebook. DW1 further testified that on 23rd September 2023 the receipt of the second demand letter the billboard was removed. The witness testified that the plaintiff did not resign from her employment but rather absconded without any notice or explanation. The defendant employed all reasonable efforts to trace the plaintiff unsuccessfully. It was on 10th September 2023, that the matter was reported to the Labour Office whereas the plaintiff was officially held to have absconded from work. 12.The witness testified that the defendant incurred hefty losses caused by the plaintiff since they had to bring down the billboard before the contractual period was over and instruct its advertisers to print and put up another billboard. 13.On cross examination, DW1 said that the defendant used the images of the plaintiff to advertise their products and that they did not pay her for the said advertisement. The witness further said that the request to use her images was through a letter of consent on 23/08/2023. 14.Parties put in written submissions. The Plaintiff’s Submissions 15.The plaintiff refers to Articles 28 and 31(c) of the Constitution and the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR and submits that commercial exploitation of her image without her consent is an interference with her rights to privacy and dignity. The defendant did not dispute that her images were deployed for business gain but just stated that the plaintiff had consented to the same. The plaintiff submits that she remained clear that she did not give her consent, did not sign any document as alleged by the defendant and thus the defendant has failed to rebut her evidence on the lack of consent. 16.The plaintiff further submits that the defendant made an attempt to have the document alleged to have been signed by herself be sent to a document examiner through an application before the court. The request was refused by the court and on grounds that both parties had already closed their cases and that the documents in issue had already been produced in evidence. The plaintiff maintains that shedid not sign the said document as alleged by the defendant and further that the defendant’s member of staff alleged to have been present when the plaintiff signed the alleged consent was not called as a witness. The plaintiff concludes that the defendant failed to prove existence of any consent by herself. 17.The plaintiff submits that the defendant failed to prove any remuneration paid to her for use of her images for advertising purposes which indicates that the defendant intended to exploit her. The plaintiff relies on the cases of Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photography (Third Party) [2020] eKLR and Kamande v Maisha Flour Limited & Another (Petition E032 of 2021) [2023] KEHC 22326 (KLR) (Constitutional and Human Rights) (22 September 2023) (Judgment) and submits that Kshs. 800,000/- is sufficient compensation for breach of her constitutional right to privacy. The Defendant’s Submissions 18.The defendant submits that the plaintiff failed to exhaust the remedies conferred by the law under the Office of Data Protection Commissioner (ODPC) in accordance with the Data Protection act which confers exclusive jurisdiction upon the Data Protection Commissioner to receive, investigate and determine such complaints and approached the court prematurely. To support its contentions, the defendant relies on the cases of Kirimi & Another v Mobi Changa Ltd (Civil Suit E038 of 2021) [2023] KEHC 25772 (KLR) and Speaker of National Assembly v Karume [1992] KLR 21 and submits that the court lacks the jurisdiction to determine the suit for non exhaustion of remedies. 19.The defendant argues that it did not violate the right to privacy and inherent dignity of the plaintiff as the plaintiff freely and expressly consented to the use of her image through letter dated 23rd August 2023. Further, the plaintiff acted in accordance to her written consent and her conduct demonstrated informed participation; she attended a photoshoot and selected the final image to be used on the billboard. To support its contentions, the defendant relies on the cases of Mind Quest Ltd v Mwatha & 2 Others [2025] KEHC 3891 (KLR) and Osiari v SMEP Microfinance Bank Ltd [2024] KEHC 5626 (KLR). 20.The defendant relies on the case of Kosiaba v Sironka & 5 Others (Environment and Land Case E012 OF 2023) [2026] KEELC 2000 (KLR) (9 April 2026) (Judgment) and submits that the plaintiff at the hearing, alleged for the first time that the consent letter was fraudulent insinuating that she did not sign it. As such, introducing claims of fraud and forgery which was not specifically pleaded was a misdirection on part of the plaintiff. Defendant argues that the plaintiff cannot be permitted to introduce allegations of fraud at the hearing stage and thereafter seek to shift the burden of proof to them, yet it is the plaintiff who bears the legal and evidential burden in respect of such allegations. Further, the defendant argues that the plaintiff neither amended her pleadings to specifically plead fraud or called a handwriting expert to substantiate the alleged fraud. Consequently, the defendant submits that the allegations of fraud are a mere afterthought, unsupported by evidence and ought to be dismissed. The defendant asserts that while it filed an application to call a document examiner, it did not assume the burden of proving fraud, but the application had been made to assist the court in determining the matter conclusively to the benefit of all the parties. 21.The defendant submits that it acted responsibly and swiftly upon receiving the plaintiff’s advocate’s demand letter on 19th October 2023 by removing the Facebook image and the pulling down the billboard on 23rd October 2023. The defendant argues that it did not process the image after the consent was withdrawn and therefore it did not violate the plaintiff’s right to privacy and dignity but complied with Section 41 of the Data Protection Act. 22.The defendant relies on the cases of Kirimi & Another v Mobi Changa Ltd (2023) and Tulia Amboseli Safari camp Limited v Opiyo & 2 Others (Civil Appeal E027 of 2025) [2026] KEHC 3415 (KLR)(26 February 2026) (Judgment) and submits that the plaintiff is not entitled to any reliefs as she has failed to prove any violation. In the alternative, the defendant submits that Kshs. 300,000/- is reasonable compensation. To support its contentions, the defendant relies on the cases of Moses Audi & Another v Standard Group PLC [2022] eKLR; Shiverenje Simani v Star Newspaper & Another [2021] eKLR and Mwonga & 4 Others v Ogega & Another [2024] KEHC 16469 (KLR). The defendant submits that it also suffered quantifiable financial loss exceeding Kshs. 500,000/- for design, printing and billboard rentals prematurely terminated, underscoring the inequity of the plaintiff’s claim. Issues for determination 23.The main issues for determination are:-a.Whether the defendant published the plaintiff’s image for commercial purposes without her consent.b.Whether the plaintiff’s rights of privacy and dignity were violated.c.Whether the plaintiff is entitled to the reliefs sought. The Law Whether the defendant published the plaintiff’s image for commercial purposes without her consent 24.The factors that the court ought to consider were stated by Lenaola J (as he then was) in the case of J. W. I & Another v Standard Group Limited & Another [2015] eKLR where he made reference to Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC) by stating:-“Secondly in the case of Mistry v Interim National Medical and Dental Council of South Africa (1998) (4) SA 1127 (CC), the Constitutional Court of South Africa considered the factors to be considered when determining whether right to privacy was violated in line with the information in question. The court stated that one ought to consider; 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 reasonably expect such private information would be withheld." 25.Similarly in the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR when dealing with a similar case of photographic publication, Mativo J (as he then was) stated:-From the above leading decisions on the subject, the key elements of a claim for unlawful use of name or image which a petitioner must establish to succeed in a case of this nature 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 and 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 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. 26.The plaintiff argued that she did not give any consent to her photograph being taken and image used in the defendant’s Facebook page and billboard erected on 18th September 2023. I have perused the record and noted that the defendant sought permission in writing a letter 23.08.2023 addressed to the plaintiff by Human Resource Manager to use the plaintiff’s pictures on their social media platforms. The plaintiff has countersigned the said letter and vide letter dated 23rd August 2023, she gave her permission in writing for her pictures to be used for the said purpose. Further, the plaintiff executed the said consent letter giving her permission. I have noted that the plaintiff argued that the said signatures in the two letters were not hers and were forged. He who alleges must prove. The plaintiff further argued that her signature was forged but did not adduce a handwriting expert evidence to proof her signature was forged. When the defendant asserted that the signatures on the documents were those of the plaintiff, she disputed the same. The evidential burden shifted to the plaintiff to prove that the said signatures were not affixed by her. The defendant produced a WhatsApp exchange between the defendant and the plaintiff on telephone number +254 791 282634 whereby the defendant asked the plaintiff if she was okay with the image intended for use in the business promotion and the plaintiff returned a message to the effect that it was okay. The plaintiff has not denied that the said phone number is registered in her name or was being used by herself at the material time. It is my considered view, that the plaintiff gave her consent for her images to be used for the defendant’s business promotion. The plaintiff having given a written consent ought to have withdrawn the consent in writing. It is evident from the evidence of the parties that there was no withdrawal in writing. It is noted that there is no evidence that the said consent was ever withdrawn. 27.On further perusal of the letters dated 23rd August 2023, the defendant intimated that they would use the images of the plaintiff in their social media platforms and related promotional materials. The record shows that the images were used on Facebook and on a billboard mounted at Witeithie along Thika Road both of which show that the said images were used for the intended and agreed purposes as provided in the communication between the parties. 28.Consequently, I find that the plaintiff has not discharged the burden of proof to the effect that she did not give consent to the defendant for use of her images. Neither did the plaintiff prove that she is entitled to any damages or orders. 29.This case is accordingly dismissed with costs to the defendant. 30.It is hereby so ordered JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 28TH DAY OF MAY 2026.F. MUCHEMIJUDGE