[2024] KEELRC 13433 (KLR)

Kiema v Ming Tribe International Group Limited (Employment and Labour Relations Petition E006 of 2022) [2024] KEELRC 13433 (KLR) (16 December 2024) (Judgment)

Neutral citation: [2024] KEELRC 13433 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Employment and Labour Relations Petition E006 of 2022

BOM Manani, J

December 16, 2024

Between

Benson Wambua Kiema

Petitioner

and

Ming Tribe International Group Limited

Respondent

Judgment

Introduction 1. The dispute between the parties relates to whether the Respondent violated the Petitioner’s rights by using his images for commercial purposes without his consent. Whilst the Petitioner contends that the Respondent sold his images to third parties for promotional reasons without his permission, the Respondent denies this claim.

Petitioner’s Case 2. According to the Petitioner, the Respondent hired his services as a butler as from February 2021. He contends that his daily wage was agreed at Ksh. 3,000. 00.

3. The Petitioner contends that the Respondent’s main business was in the tourism and entertainment sector. He avers that the Respondent was also involved in the creation of artwork, videos, proposals, discoveries and creation of documentaries for sale to third parties.

4. The Petitioner avers that initially, the Respondent required him to only receive and ensure the comfort of its guests. However, it (the Respondent) subsequently allegedly forced him to offer other services such content creation.

5. The Petitioner contends that in pursuit of the foregoing, the Respondent issued him with a draft contract which was to commence on 8th April 2021. He avers that the draft required him to offer content creation services to the Respondent without pay. He contends that the proposed services included artwork and production of promotional videos among other activities.

6. The Petitioner asserts that because of lack of expertise in the world of acting, he declined the invite. He contends that his decision was also informed by the fact that he was not going to be remunerated for the endeavor. As such, he did not sign the proposed contract.

7. The Petitioner contends that on diverse dates between April 2021 and July 2021, he learned that the Respondent had sold his images to third parties for promotional purposes. In particular, he contends that the Respondent sold video recordings of him to Transread Technology Limited and Coudview Technologies Limited who in turn used them for promotional purposes.

8. The Petitioner avers that the Respondent sold the aforesaid content to the aforesaid third parties without his consent thus violating his right to privacy. He further contends that the Respondent used the images for commercial purposes without the benefit accruing to him in violation of his right to property. As such, the Petitioner contends that the Respondent’s actions subjected him to economic exploitation in violation of his protection against slavery and forced labour.

The Respondent’s Case 9. On its part, the Respondent admits that it engaged the Petitioner as a butler. It further concedes that it sought to have the Petitioner sign the draft contract which was to commence on 8th April 2021 but he declined. As such, the Respondent contends that the contract was never implemented.

10. The Respondent denies that it used the Petitioner’s images as alleged or at all. It denies that it recorded the impugned video clips.

11. The Respondent denies that it had any relations with the two third parties whom the Petitioner has accused it of selling his images to. It denies that it sold the images to the two third parties.

12. The Respondent denies that the parties had an employment relationship. It contends that it only used the Petitioner’s services on consultancy basis.

Issues for Determination 13. Having regard to the foregoing, it is apparent that the following are the questions which require determination:-a.Whether there was an employment relationship between the parties to the action.b.Whether the Respondent exploited the Petitioner’s labour to procure creative content which it sold to third parties without the Petitioner’s consent in violation of the latter’s constitutional rights to: privacy; property; and in violation of his protection against slavery; and forced labour.c.Whether the Petitioner is entitled to the reliefs that he seeks through this action.

Analysis 14. Whether the parties to the action had an employment relationship is significant in determining whether the court is seized of jurisdiction to entertain the case. If the relation between them was not one of employment, the court will not have jurisdiction over the matter. Conversely, if the two had an employment relation, the court will have jurisdiction over the dispute.

15. According to the Petitioner, the Respondent employed him as a butler in February 2021 on a daily wage of Ksh. 3,000. 00. The Petitioner posits that under the arrangement, he was required to work for six (6) days in a week.

16. The Respondent filed a replying affidavit in the matter which is dated 30th July 2023. In the affidavit, the Respondent does not controvert the Petitioner’s claim that the two had an employment relationship. On the contrary, at paragraph 18 of the affidavit, it (the Respondent) expresses itself on the matter as follows:-‘’…the Respondent being fully alive to the laid down procedure as stipulated under the Employment Act and the Employment contract between it and the Petitioner issued the requisite notices as mandated under Section 40 of the Employment Act to the Petitioner.’’

17. Essentially and by this averment, the Respondent admitted that the labour relation between them was one of a contract of service. Second, the Respondent conceded that the said relation was regulated by the provisions of the Employment Act. As such and by these averments, the Respondent admits that the two were in an employment relation.

18. In an apparent attempt to shift goalposts on the matter, the Respondent’s witness stated in evidence that the Petitioner was not an employee of the Respondent. Rather, he was serving on consultancy basis.

19. The testimony by Respondent’s witness on the issue was not founded on the pleadings that were filed by the Respondent. The said evidence was at cross purposes with the replying affidavit on record.

20. The position in law is that a party is not entitled to raise a defense or cause of action which is not pleaded. He must build his case around his pleadings.

21. As such, it was not open to the Respondent’s witness to disown what the Respondent had admitted through its pleadings and seek to contest the fact of employment between the two. Consequently and based on the foregoing, the court finds that the parties to the action had an employment relation with the consequence that this court has jurisdiction to entertain this dispute.

22. The next question to determine is whether the Respondent exploited the Petitioner’s labour to procure and sell creative content to third parties without the Petitioner’s consent in violation of the latter’s constitutional rights to: privacy; property; and in violation of his protection against slavery; and forced labour.

23. The Petitioner’s case is that the Respondent caused to be recorded promotional videos involving him which it sold to third parties. However, the Respondent contests this assertion.

24. From the evidence on record, it is apparent that video recordings of the Petitioner were displayed on social media. However, there is no cogent evidence to suggest that the said videos were either recorded by or at the instance of the Respondent or that it is the Respondent which shared them with the third parties who are said to have circulated them. Further, there is no evidence that the Respondent had a contractual arrangement with the companies that circulated the videos pursuant to which it shared the impugned material with them. There is also no evidence that the Respondent drew a commercial benefit from the alleged transactions.

25. The Respondent has expressly denied that it recorded and shared the impugned videos with the purported third parties as alleged or at all. In the face of this denial, it was upon the Petitioner to establish, on a balance of probabilities, that indeed the Respondent was responsible for circulation of the impugned material. This obligation is founded on the provisions of sections 107, 108 and 109 of the Evidence Act.

26. From the material on record, the Petitioner did not provide cogent evidence to anchor his claim. As such, it (the claim) must fail.

Determination 27. Having regard to the foregoing, I find that the claim by the Petitioner has not been sufficiently proved. As such, it fails.

28. Costs of the case are granted to the Respondent.

DATED, SIGNED AND DELIVERED ON THE 16THDAY OF DECEMBER, 2024B. O. M. MANANIJUDGEIn the presence of:…………. for the Petitioner………………for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI