[2022] KEHC 15330 (KLR)

Karbolo v Mara Landmark Limited t/a Mara Simba Lodge (Civil Suit 238 of 2013) [2022] KEHC 15330 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15330 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 238 of 2013

JK Sergon, J

November 11, 2022

Between

Sosio Ole Karbolo

Plaintiff

and

Mara Landmark Limited t/a Mara Simba Lodge

Defendant

Judgment

1. The plaintiff herein lodged a suit against the defendant videthe plaint dated April 22, 2013 and sought for the following reliefs:i.A permanent and perpetual injunction restraining the defendant, its agents, employees and/or its trustees from further publishing, printing and/or circulating the plaintiff’s photograph in any way.ii.Payment of damages for illegal use of his photographs.iii.Payment of damages for breach of contract.iv.General damages for breach of his constitutional rights.v.Payment for services for use of the plaintiff’s photographs for advertisement from 1996 to date.vi.Interest on (b), (c), (d) and (e) above at court rates.vii.Costs of the suit.viii.Any other remedy the court may deem to grant.

2. The plaintiff pleaded in the plaint that he was at all material times an employee of the defendant, working as a gardener.

3. The plaintiff pleaded in the plaint that during the course of his employment with the defendant, the defendant caused to be taken photographs of the plaintiff in his full masai regalia as a warrior in the absence of an explanation as to the purpose behind the photographs.

4. The plaintiff further pleaded in the plaint that the defendant caused the abovementioned photographs to be published in various brochures and internet circulation platforms for purposes of the promotion of its business, and yet the defendant did not pay the plaintiff any monies as compensation for such use of his image.

5. It is pleaded in the plaint that it was not a term of the agreement between the parties that he would be used for any other purpose save for the employment by the defendant and hence the defendant acted in breach of the contract and of the plaintiff’s rights, with the particulars being set out under paragraph 11 of the plaint.

6. It is also pleaded in the plaint that as a result, the plaintiff suffered psychological and emotional torture and for which he is entitled to an award of damages.

7. Upon service of summons, the defendant entered appearance and filed its statement of defence on August 1, 2013 to refute the plaintiff’s claim.

8. At the hearing of the suit, the plaintiff testified while the defendant summoned one (1) witness.

9. On his part, the plaintiff stated that he was appointed by the defendant to work as a gardener on April 8, 1996.

10. The plaintiff stated that sometime during the course of his employment, he discovered some brochures bearing his photographs, upon which he went to inquire from his manager as to why his photographs were being used without his consent.

11. It is the testimony by the plaintiff that his photograph appearance on the internet led people to believe that he was quite rich when this was not the case.

12. It is also the testimony by the plaintiff that during the times his photograph would be taken, he would be told to change into his traditional regalia and would travel to various places, but that there was no agreement to the effect that his photograph would be taken and used by the defendant.

13. The plaintiff stated that during his employment with the defendant, he would receive payment to participate in group masai dances but that his issue lies with the brochures.

14. In cross-examination, the plaintiff testified that he worked for the defendant for a period of 15 years and that the defendant began using his photographs in the year 1996.

15. The plaintiff also testified that during the traditional dances, tourists would also take photographs of them and that at the time he left the employment of the defendant in the year 2011, they had worked harmoniously.

16. It is the evidence by the plaintiff that upon his filing of the suit, the defendant pulled down his photographs from the internet.

17. The plaintiff stated that the photographs in question were taken without his permission but that he was not forced to have them taken, and that he would be notified beforehand to change his clothes.

18. The plaintiff further stated that during his employment with the defendant, he did not complain and that he left the defendant’s employment not because of any issues but in order to seek greener pastures.

19. It is the testimony by the plaintiff that he did not receive any payment for the use of his photographs and that whenever he would inquire about the said photographs, he would be told that he is an employee of the defendant.

20. James Koileken who was DW1 stated that he was at all material times the General Manager at the defendant company and that had the plaintiff requested for payment for use of his photographs, the defendant would have willingly excluded him from the brochure.

21. The witness also stated that the defendant made the plaintiff head of the masai dance group which would entertain guests and tourists, and that he would even receive tips as a result, in addition to other privileges.

22. In cross-examination, the witness testified that the plaintiff received a salary and also payment on behalf of the dance group and that at the time of his resignation, the plaintiff did not claim anything from the defendant.

23. DW1 further testified that the plaintiff’s photograph appeared in one of the brochures and that the photograph was taken with his permission.

24. It is also the testimony byDW1 that other employees of the defendant also featured in the photographs and that the plaintiff did not request for payment as a result of his photograph.

25. The witness gave evidence that the brochures are usually carried away by guests upon departure, and were intended to advertise the masai dancers but that they did not feature in the company website.

26. In re-examination, the witness stated that the plaintiff was not singled out and that his photograph featured mainly since he was the head of the masai dance group.

27. Upon close of the hearing, this court invited the parties to file and exchange written submissions.

28. In his submissions dated February 11, 2022 the plaintiff argues that the photographs in question were taken and published without his consent, thereby infringing on his right to privacy provided for under article 31 of the Constitution of Kenya of Kenya, 2010 and reaffirmed by the court in the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR in which the court rendered itself thus:As regards the right to privacy, article 31 of the Constitution provides that:“Every 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; orIn Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR, Mativo J, held that;“The right to privacy consists essentially in the right to live one’s life with a 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.”

29. On damages, the plaintiff submits that an award in the sum of Kshs 10,000,000/= would constitute adequate total compensation for infringement of his constitutional right to privacy and for the breach that occurred as a result.

30. The defendant on its part contends that the plaintiff was at all material times aware when his photograph was being taken and cannot therefore be heard to say that his consent was not obtained, and cites the case of NWR & another v Green Sports Africa Ltd & 4 others [2017] eKLR where the court reasoned that:“The plaintiff must establish that he or she did not give permission for the offending use.”

31. The defendant contends that the plaintiff has not proved his case to the required standard.

32. The defendant also submits that the plaintiff is not entitled to any of the reliefs sought and urges that should this court be inclined to make an award, the same be guided by the case of FAF (suing on her own behalf and as a next friend of SAS and NAMS) v Norwegian Refugee Council [2019] eKLR where the court made an award in the sum of Kshs70,000/= on damages for the unlawful use of the plaintiff’s photograph.

33. I have considered the evidence tendered in court and the submissions filed plus the authorities cited, and I have identified the following as the key issues for determination:i.Whether there was a breach of the contract by the defendant;ii.Whether the plaintiff’s constitutional right to privacy was infringed upon by the defendant;iii.Whether the plaintiff suffered loss/damage as a result of the above; andiv.Whether the plaintiff is entitled to the reliefs sought.

34. On the first issue, it is not in dispute that the plaintiff was at all material times an employee of the defendant and working as a gardener.

35. Upon my examination of the pleadings and evidence, I am of the view that the plaintiff did not tender any credible evidence to indicate that the actions taken by the defendant in taking his photographs and/or placing them in the brochure constituted a breach of contract.

36. Upon my further examination of the pleadings and evidence, I did not come across anything which would generally lead me to conclude that the defendant in any manner acted in breach of the employment contract entered into between the parties.

37. On the second issue, from my study of the record, it is apparent that the plaintiff was at all material times aware and/or had knowledge as to when his photos were being taken since he even explained in his oral testimony that he would be requested to change his attire and wear his masai regalia for purposes of the photo taking sessions.

38. From my further study of the record and the totality of the evidence tendered, I find that the plaintiff did not adduce any credible evidence to demonstrate that he was either coerced or pressured into participating in the photograph sessions and there is also nothing to indicate the absence of consent, especially given the nature of business that the defendant was engaged in at all material times.

39. It is also apparent from the record that the plaintiff voluntarily participated in the photograph sessions taken by the tourists and even participated in the group dance sessions for which he has not disputed receiving an allowance.

40. Furthermore, the plaintiff did not tender any credible evidence to support his statement that he raised issue with having his photograph taken or that he requested for payment/ compensation for that purpose.

41. In view of all the foregoing circumstances, I am of the opinion that the plaintiff has not proved by way of credible evidence that his constitutional right to privacy was violated and/or infringed, since the defendant in any event explained that the brochures featured various other members of staff and were intended for the guests who visited the lodge.

42. This brings me to the third issue touching on whether there is evidence of loss/harm to the plaintiff.

43. Upon my finding on the preceding issues above and upon my consideration of the pleadings and material, I did not come across anything credible to demonstrate the averments made by the plaintiff that as a result of the photographs featuring his image, he was subjected to torture and/or loss in the manner pleaded in the plaint.

44. In view of all the foregoing circumstances, I hereby find that the plaintiff has not proved his claim against the defendant on a balance of probabilities. Consequently, the suit against the defendant is hereby dismissed with costs.

45. Nevertheless, I am enjoined by law to consider the reliefs I would have awarded if the plaintiff had succeeded on his claim, which leads me to the fourth and final issue.

46. On the prayer for an injunction, I note from the evidence tendered that the photographs in question were withdrawn from the brochures and pulled down from the defendant’s website following institution of the suit.

47. There is nothing to indicate that the plaintiff was under threat of having his photograph applied again. Consequently, I would not have awarded the permanent injunction sought.

48. On the question of damages for breach of contract, I would have considered the reasoning in the case of Ronyad Enterprises Limited v Kenya Commercial Bank Limited [2019] eKLR that as a general rule, damages are not available for breach of contract.

49. All the same, I would have awarded the plaintiff nominal damages in the absence of proof of actual loss/damage suffered and upon considering the case of Ronyad Enterprises Limited v Kenya Commercial Bank Limited[2019] eKLR where an award of Kshs 100,000/= was upheld under this head and the case of Supinder Singh Sagoo v Kenya Commercial Bank [2020] eKLR in which the court awarded a nominal sum of Kshs 100,000/= on general damages. In my opinion, the sum of Kshs 100,000/= would have constituted reasonable nominal damages for breach of contract.

50. I would have declined to make any award for payment of services pertaining to the use of the plaintiff’s photograph, in the absence of any credible evidence to support the same.

51. In respect of general damages for unlawful use of the plaintiff’s photograph, being guided by the case of FAF (suing on her own behalf and as a next friend of SAS and NAMS) v Norwegian Refugee Council [2019] eKLRcited by the defendant, where the court awarded a sum of Kshs 70,000/= under a similar head. I would have awarded the reasonable sum of Kshs 100,000/= under this head.

52. In the end this suit is hereby dismissed with costs to the defendant.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ………………………J. K. SERGONJUDGEIn the presence of:…………………………………for the Plaintiff…………………………………for the Defendant