https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12902

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTION AND HUMAN RIGHTS DIVISION** **PETITION NO. E117 OF 2022** **IN THE MATTER OF BREACH OF THE PETITIONER’S PRIVACY AND DIGNITY** **AND** **IN THE MATTER OF RULE 4(1) OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULES 2013** **AND** **IN THE MATTER OF ARTICLES 10, 11 (2) (c), 20, 21, 22, 23, 28, 31, 159, 165 (2) (b), 258 & 259 OF THE CONSTITUTION** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 28 & 31 (c) OF THE CONSTITUTION** **-BETWEEN-** **GIDRAF GATIRA MAINGI ……….………………….....…... PETITIONER** **VERSUS** **NAIROBI JAVA HOUSE LTD ..…………………………….. RESPONDENT** **JUDGMENT** 1. The Petitioner herein Gidraf Gatira Maingi filed the Petition dated **21st March 2022** seeking the following reliefs: - 2. ***THAT the Honourable Court be pleased to issue declaration that the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information.*** 3. ***THAT the Honourable Court be pleased to award compensation in form of general damages to the Petitioner for the violation and infringement of his rights.*** 4. ***THAT the Honourable Court be pleased to award costs to the Petitioner.*** 5. The Petition is supported by the Petitioner’s sworn Affidavit dated evenly with the Petition. The Petitioner’s case is that he was employed by the Respondent from February 2015 until July 2021. That during his employment in the period around 2015–2016, he was photographed while wearing company-branded merchandise. 6. That in December 2021, he discovered through a friend, David Odhiambo, that Java House was advertising using his photograph-image and name. that upon checking shortlist.net/company/java-house, the Petitioner confirmed his image and name were being published globally without prior informed consent. 7. Asserting entitlement to compensation for commercial depiction and violation of fundamental rights, the Petitioner avers that he sent a demand letter to Java House, which was rejected and ignored. Accordingly, he seeks this Court’s intervention, affirming the unfettered primary jurisdiction and asserting that the balance of convenience favours granting the sought orders. 8. In response to the Petition, the Respondent filed a **Replying Affidavit** dated **20th June 2022** sworn by Daisy Ogola, Legal and Compliance Officer of Nairobi Java House Limited, in which she deposes that the Petitioner was employed as a Steward from 9th January 2015, until July 2021, when he was lawfully and fairly subjected to summary dismissal following a disciplinary hearing regarding allegations of theft and lack of integrity. 9. Regarding the Petitioner’s image rights claims, the Respondent asserts that the photographs were taken with the Petitioner’ knowledge and voluntary consent during the course of his employment. The deponent highlights *Clause 11 of the Employment Contract*, under which the Petitioner agreed that the company owns all intellectual property rights as works made for hire, assigned all such rights across all media platforms and waived any moral rights. 10. Further, the deponent states that the image uploaded to its Shortlist Recruitment Portal was used solely as a profile image to provide an accurate representation of on-duty staff, rather than for commercial marketing or monetary gain. 11. The Respondent refutes allegations that it ignored the Petitioner’s demand letter, noting that it issued a prompt "without prejudice" response on 28th February 2022, while denying all liability. Although asserting its full legal right to use the photographs under the employment agreement, the Respondent states that it voluntarily took down the Petitioner’s image from the Shortlist website upon learning of his grievance. 12. Consequently, the Respondent contends that no constitutional rights to privacy, dignity, or information were infringed, submitting that the Petition is baseless, filed in bad faith and intended as retaliation for the Petitioner’s summary dismissal. 13. In his **further Affidavit sworn on 20th July 2022** in further response to the Respondent’s Replying Affidavit sworn on 20th April 2022, the Petitioner states that Nairobi Java House Ltd has misapprehended their 9th January 2015 employment contract. He rejects the Respondent’s position that his personal image, likeness and personality rights constitute "works made in the course of employment" or intellectual property that could be assigned. 14. The Petitioner asserts that under Clause 11 of the employment contract, signing requisite paperwork was a condition precedent to any waiver or assignment of rights. He challenges the Respondent to produce evidence of any formal request or signed waiver authorizing the publication of his photograph. 15. Further, the Petitioner argues that the Respondent fundamentally confused copyright ownership with publicity and privacy rights. He maintains that while the employer may own the copyright to the physical photograph, it still required his prior informed consent to publish it for marketing purposes. He points out that using his image to represent staff on an online portal constitutes a marketing benefit. 16. He also contends that the Respondent’s voluntary decision to pull down the image despite no explicit demand to do so in his initial letter, demonstrates their awareness that the publication was unjustified. 17. Finally, rejecting allegations that his Petition is a vindictive retaliation for his termination from employment, the Petitioner maintains that the suit is a legitimate pursuit of justice regarding constitutional privacy violations. He concludes that this case presents a timely opportunity for the Court to establish clear constitutional standards for employee privacy and publicity rights. 18. In a subsequent Replying Affidavit sworn by Maureen Mithamo, Head of Corporate Affairs at Nairobi Java House Limited, on **26th March 2025**, the Respondent reiterates the depositions made in the first Replying Affidavit dated 20th June 2022 that the Petitioner was employed as a Steward starting 9th January 2015 and that his employment ended in July 2021 via summary dismissal due to allegations of theft and lack of integrity. 19. It is deposed that under Clause 11 of the Employment Contract, the Petitioner assigned all IP rights as works made for hire to the Respondent, waived all moral rights and agreed to assist in protecting those rights. 20. The deponent asserts that photos of the Petitioner were taken during his employment with his voluntary consent and knowledge that they could be used on company platforms. It is stated that his photo was used as part of the Respondent’s profile on *Shortlist*, an online recruitment portal, to reflect current staff in uniform. 21. The Respondent denies using the photos for commercial gain, marketing products, or exploiting the Petitioner and ignoring the Petitioner’s demand letter dated 15th February 2022, stating a "without prejudice" response was delivered on 28th February 2022. Though not admitting liability, the Respondent states that they took down the Petitioner’s image from Shortlist following his complaint. 22. The deponent rejects allegations of constitutional rights violations of dignity, privacy, information under Articles 28, 31 and 35 as false, unfounded and stated that the Petition is filed in bad faith as retaliation for his summary dismissal. 23. Parties took directions to canvass the Petition by way of written submissions which they highlighted in Court on 18th June 2026. **Submissions** 1. The Petitioner filed his written submissions dated 25th February 2024 in which Counsel highlighted the following issues for determination: *Whether or not the Respondent violated, infringed and threatened the Petitioners rights to privacy, dignity, publicity and information by using and publishing his image;* *Whether or not the Petitioner is entitled to damages for the violation and infringement of his rights; and* *Whether or not the Petitioner is entitled to costs*. 1. Addressing the primary issue of whether the impugned publication infringed the Petitioner’s rights, Counsel anchors the argument on ***Article 28 of the Constitution*** on the right to human dignity and ***Article 31*** on the right to privacy. To demonstrate that an individual’s image and likeness are intrinsic to privacy and dignity, reliance is placed on ***Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR*** where Mativo J. (as he then was), held that image rights protect personality interests being identity, privacy and dignity; and that unauthorized use of an image for commercial or advertising purposes constitutes an actionable infringement. 2. Counsel for the Petitioner rejects the Respondent’s argument that the image formed part of its intellectual property due to the employment relationship. Quoting the obiter dictum in ***T.O.S v Maseno University & 3 others [2016] eKLR***, Counsel asserts that employees do not forfeit their right to privacy, as publishing an individual’s image without consent directly invades their personal realm. 3. Relying on the ratio decidendi in ***Wangechi Waweru Mwende v Tecno Mobile Limited & another [2020] eKLR***, Counsel for the Petitioner drew the legal distinction between copyright ownership and the distinct constitutional protections guaranteed for privacy and human dignity. 4. Regarding compensation, the Petitioner though his Counsel grounds the claim for general damages in ***Article 23(3) of the Constitution*** which empowers the court to grant orders for compensation and declarations of rights. To guide the assessment of non-pecuniary losses, Counsel relies on the principles articulated in ***MWK & Another v Attorney General & 3 Others [2017] eKLR*** acknowledging that while emotional distress and feelings of humiliation cannot be measured precisely in monetary terms, awards must remain fair, reasonable and informed by precedent. 5. Counsel highlights comparable awards, citing ***Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR*** where Hon. Odunga J. *(as he then was)* awarded Kshs 2,000,000 and ***Joel Mutuma Kirimi & another v National Hospital Insurance Fund (NHIF) [2020] eKLR*** where Ong'injo J. awarded Kshs 5,000,000. Taking inflation into account, Counsel for the Petitioner submits that an award of Kenya Shillings Ten Million (Kshs 10,000,000) is appropriate. 6. Finally, on the issue of costs, the Petitioner invokes the established principle that costs follow the event, relying on ***Stanley Kaunga Nkarichia v Meru Teachers College & another [2016] eKLR*** to support the claim for interest on those costs. Counsel also cites ***Section 27(2) of the Civil Procedure Act (Cap 21)***, urging that the Court award interest on costs at the rate of 14% per annum from the date of judgment. 7. In their **submissions** **dated 30th May 2024**, the Respondents through their legal counsel isolated the following issues for determination: *whether the Petitioner’s rights to privacy, dignity, publicity and information were violated, infringed or threatened by the Respondent;* *Whether the Petitioner is entitled to the Orders sought in the Petition; and Who should bear the costs of the Petition.* 1. On the first issue of alleged infringement of constitutional rights, Counsel for the Respondent submits that the Petitioner failed to specify the nature, extent and injury of any alleged constitutional infringement, rendering the claims sweeping and unsubstantiated under ***AM v Premier Academy [2017] eKLR***. Grounded in ***Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR***, Counsel submits that image rights require proving that a person’s identity was used for an exploitative purpose without consent. That in this case, the Petitioner admitted to consenting to the photo, which was taken during his ordinary duties as a steward for employee recruitment on Shortlist, yielding no commercial benefit to the Respondent. 2. Regarding privacy and dignity under ***Articles 28 and 31*** and citing the case of ***Ngugi v County Government of Nakuru [2023] KEHC 22624, Wanjiru v Machakos University [2022] KEHC,*** and ***Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR***, Counsel submits that the photo was non-intrusive, not intimate and was used strictly for its intended purpose. It is asserted that for the right to publicity to stand infringed, as set out in ***NWR & another v Green Sports Africa Ltd & 4 others [2017] eKLR***, it has to involve the marketing of image rights for financial gain and that in this case, the Petitioner failed to show he declined publication or requested a takedown prior to the demand letter, following which the Respondent promptly removed the image as was held in ***Makokha v Capwell Industries Limited [2022] KEHC 17134***. 3. Finally, Counsel submits that the claim regarding Article 35 and the Access to Information Act failed because the Petitioner was informed and requested if his picture could be taken and he never asked the Respondent to take it down. That in any case, the Respondent acted promptly by removing the photograph from Shortlist. It is also argued that the Petitioner did not give evidence that he was denied information by the Respondent upon request. 4. On the second issue, the Respondent asserts that because no constitutional rights were infringed, the Petitioner is not entitled to declaratory relief or monetary compensation. Referencing ***Jessicar Clarise Wanjiru*** and ***Peter Ndegwa Kiai v Attorney General & 2 others [2021] KECA 328***, Counsel submits that damages require the exercise of judicial discretion based on principles and evidence of actual loss, which the Petitioner failed to discharge. It is also argued that the Respondent’s immediate removal of the photo upon receiving the demand letter further excuses it from liability. 5. Relying on ***Rule 26 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013,*** Counsel states that costs remain at the court's discretion, citing ***Gandhi v UBA Kenya Bank Limited [2023] KEHC 17492.*** Counsel for the Respondent argues that while costs should not deter access to justice, the Petition completely lacks merit, justifying an award of costs in favour of the Respondent. **Analysis and Determination** 1. Having considered the petition and the opposition thereto, the issues for my determination are as follows: - 2. ***Whether the petition offends the doctrines of exhaustion and constitutional avoidance.*** 3. ***Whether the Petition is merited.*** 4. ***Who bears the costs?*** 5. ***Whether this Court has jurisdiction to hear and determine the Petition.*** 6. It is trite that jurisdiction is the cornerstone of judicial authority. A court of law must first satisfy itself that it is properly seized of jurisdiction, for without jurisdiction, it cannot act where it is bereft of jurisdiction. This Court is empowered to determine the question of jurisdiction not only when raised by parties, but also *suo motu* the issue of jurisdiction is a fundamental question that goes to the root of competence and has the potential of rendering any proceedings or orders null and void. (See **Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment**) where the Court of Appeal stated, *inter alia*, that: ***30. With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:*** ***“ By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”*** ***See Words and Phrases Legally defined – Volume 3: I – N Page 113*** ***31. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Scanty or limited facts constitute the evidence before the court. A party who fails to question the jurisdiction of a court may not be heard to raise the issue after the matter is heard and determined.*** ***32. I can see no grounds why a question of jurisdiction could not be raised during the proceedings. As soon as that is done, the court should hear and dispose of that issue without further ado.”*** 1. Thus, before delving into the merits of any matter, the Court must interrogate and pronounce itself on whether jurisdiction exists in this case, since jurisdiction is not conferred by consent, nor can it be waived, it must flow directly from the Constitution or statute. 2. In **Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR)** the Supreme Court aptly established that: ***“68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”*** 1. **Article 165 of the Constitution** sets out this Court’s jurisdiction as follows: ***3. Subject to clause (5), the High Court shall have—*** 1. ***unlimited original jurisdiction in criminal and civil matters.*** 2. ***jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.*** 3. The High Court has jurisdiction under **Articles 22 and 23, read with Article 165**, to hear and determine any claim of denial, violation, infringement, or threat to fundamental rights and freedoms in the Bill of Rights and may exercise this authority to grant appropriate relief whenever such questions are properly brought before it. 4. This Court observes that, although it is ultimately vested with jurisdiction to hear and determine petitions regarding alleged violations of fundamental rights and freedoms under ***Articles 22, 23 and 165 of the Constitution***, constitutional interpretation is preserved for matters where no statutory mechanism can provide a complete remedy. Instead, under the doctrines of exhaustion and constitutional avoidance, jurisdiction is merely deferred or managed. 5. In other words, the Petitioner is only barred from approaching this Court in the first instance without first pursuing redress from other statutory mechanisms in line with the doctrines of exhaustion and constitutional avoidance. 6. The Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment)** stated: ***“[255] Section 35(4) of the Copyright Act provides an avenue for redress, in the event of an infringement. It thus provides: Infringement of any right protected under this Act shall be actionable at the suit of the owner of the right and in any action for the infringement the following reliefs shall be available to the plaintiff?*** 1. ***relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;*** 2. ***delivery-up of any article in possession of the defendant which appears to the court to be an infringing copy; or any article used or intended to be used for making infringing copies…”*** ***[256]The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:*** ***“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”*** ***[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).*** ***[258] From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”*** 1. The Court of Appeal in the case of **Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR** clearly explained the principle of exhaustion of remedies thus: - ***“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”*** 1. In the principles espouse din the above cited decisions were first stated in **Speaker of the National Assembly v Karume [1992] KLR 21,** where the Court of Appeal at paragraph 15 held that – ***“15.In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the***[***Constitution***](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution%20of%20Kenya%20%28Repealed%29.pdf)***or an Act of Parliament, that procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the***[***Civil Procedure Rules***](https://kenyalaw.org/akn/ke/act/1924/3)***cannot oust clear constitutional and statutory provisions.”*** 1. The Doctrine of Avoidance requires that a court will not determine a constitutional question if a dispute can be resolved on non-constitutional grounds or through other mechanisms. It connotes that in such a situation, the Court should refrain from determining constitutional issues. In **Royal Media Services Ltd v Attorney General [2018] eKLR,** the Court of Appeal reiterated that: ***“Where it is possible to decide a case without reaching a constitutional issue, that should be done”. The doctrine, just as the exhaustion of remedies principle, preserves the Constitution for real constitutional controversies.”*** 1. Similarly, in **Godfrey Paul Okutoyi & others v Habil Olaka & Another [2018] eKLR** Hon. Chacha Mwita J (*as he then was*) stated thus:- ***“65.It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a court of law in a manner allowed by that particular statute or in an ordinary suit as provided by procedure. It is not every failure to act in accordance with a statutory provision or where action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a right or fundamental freedom. Any other claim should be filed in the appropriate forum in the manner allowed by the applicable law and procedure.”*** 1. Under the doctrines of exhaustion and constitutional avoidance, this Court, though the guardian of constitutional rights, requires petitioners to first pursue and exhaust available statutory and administrative remedies, before approaching this Court, thereby reserving its jurisdiction as the final safeguard only where those mechanisms prove inadequate or are unavailable. In **William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR**, a five Judge Bench of the High Court stated as follows regarding the doctrine of exhaustion and constitutional avoidance: ***“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and was aptly elucidated by the High Court in R vs. Independent Electoral and Boundaries Commission (I.E.B.C) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the Court opined thus:*** ***“42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:*** ***“Where there is a clear procedure for redress of any particular grievance prescribed by***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.*** ***43.While this case was decided before***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***of Kenya 2010 was promulgated, many cases in the Post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the Constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:*** ***“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of***[***the Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***which commands Courts to encourage alternative means of dispute resolution.”*** 1. This Court has considered the Petitioner’s main grievance and the provisions of the Constitution together with the case law cited herein above. The Petitioner decries that during his employment with the Respondent, his photographs were taken by the Respondent’s agents at a work-related event and subsequently published on its website without obtaining his prior consent before, during, or after publication. In other words, he is complaining of infringement of his right to dignity, privacy and information which he alleges was violated through the unauthorized use of his image in the Respondent’s *Shortlist* website. 2. **Article 31 of the Constitution** provides for the right to privacy and protection from having one’s information, communication or affairs unnecessarily required or revealed. The Petitioner’s complaint falls under the **Data Protection Act, No. 24 of 2019**, (DPA) which establishes the Office of the Data Protection Commissioner and gives effect **to Article 31 of the constitution**. The DPA (the Act) regulates the processing of personal data and provides for the rights of data subjects together with dispute resolution mechanisms for breach of the Act. This position is acknowledged in many decisions of the High Court, which decisions have persuasive value to this Court, that usage of a person’s image without their consent is a violation of their right under Article 31 of the Constitution as implemented by the Data Protection Act. F. Muchemi J in **Kamande v Nation Media Group (Constitutional Petition E004 of 2021) [2022] KEHC 16017 (KLR) (1 December 2022) (Judgment) s**tated as follows: ***“56. The court has already established that the respondent did not obtain the necessary consent to take the petitioner’s photograph and thereafter use it in their publications. Furthermore, the respondent cannot carry out an illegal act and then claim ownership of the property from the act. Moreover, the law is clear on how data collected and processed by an individual of another person ought to be carried out.*** ***Section 26 and 29 of the Data Protection Act stipulates:-*** ***A data subject has a right:-*** ***a. To be informed of the use to which their personal data is to be put;*** ***b. To access their personal data in custody of data collector or data processor;*** ***c. To object the processing of all or part of their personal data;*** ***d. To correction of false or misleading data; and*** ***e. To deletion of false or misleading data about them.*** ***57. Section 29 provides:-*** ***A data controller or data processor shall, before collecting personal data, in so far as practicable, inform the data subject of:- a. The rights of the data subject specified under Section 26*** ***b. The fact that personal data is being collected;*** ***c. The purpose for which the personal data is being collected;*** ***d. The third parties whose personal data has been or will be transferred to, including details of safeguards adopted;*** ***e. The contacts of the data controller or data processor and on whether any other entity may receive the collected personal data; f. A description of the technical and organizational security measures taken to ensure the integrity and confidentiality of the data;*** ***g. The data being collected pursuant to any law and whether such collection is voluntary or mandatory; and*** ***h. The consequences if any, where the data subject fails to provide all or any part of the requested data.*** ***58. Further in the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR the court held:-*** ***Every individual has an exclusive right to market, for financial gain, their personality, image and name and that the law entitles an individual to protect that right, if it is invaded.”*** 1. From the above cited sections of the law, a person’s photograph or image that makes them identifiable qualifies as personal data under **Section 2** of the Act which defines personal data and breach as:- ***"Personal data" means any information relating to an identified or identifiable natural person;*** ***"Personal data breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.*** 1. **Section 8 of the Act** authorizes the office of the Data Commissioner to investigate and oversight data processing and use. It provides thus: - ***8. Functions of the Office*** ***(1) The Office shall—*** ***(f) receive and investigate any complaint by any person on infringements of the rights under this Act;*** 1. **Section 9 of the Act** grants the Office of the Data Commissioner authority to investigate complaints, facilitate dispute resolution and impose sanctions for breaches of data protection as follows: - ***9. Powers of the Office*** ***(1) The Data Commissioner shall have power to—*** ***(a) conduct investigations on own initiative, or on the basis of a complaint made by a data subject or a third party;*** ***(c)facilitate conciliation, mediation and negotiation on disputes arising from this Act;*** ***(d)issue summons to a witness for the purposes of investigation;*** ***(f)impose administrative fines for failures to comply with this Act.*** 1. **Sections 58** and **62 of the Act** establish an enforcement framework by empowering the Data Commissioner to issue enforcement and penalty notices against parties who fail to comply with provisions of the Act, thereby providing a strong statutory mechanism for addressing breaches of image rights and reinforcing the Court’s position on the necessity of exhausting available remedies before invoking constitutional jurisdiction. 2. Thus, the fact that the Petitioner alleges constitutional violations does not remove the obligation to first pursue remedies under the Data Protection Act; and therefore, simply presenting an image right claim as a constitutional issue does not give this Court automatic jurisdiction where a specialized mechanism exists, and therefore the Petitioner cannot avoid statutory dispute resolution by relying solely on ***Article 31***. 3. In **Kweri v Beehive Media Limited; Capwel Industries Limited (Interested Party) (Constitutional Petition E321 of 2021) [2023] KEHC 2684 (KLR) (Constitutional and Human Rights) (31 March 2023) (Judgment),** Mrima J. held as follows: - ***“111. A close scrutiny of the Data Act reveals a deliberate design to ensure that all claims arising from allegations of infringement of article 31(c) and (d) of the Constitution are wholly dealt with by the Commissioner as the first port of call. Such position can only be overruled by a party demonstrating any of the exceptions to the doctrine of exhaustion in a matter.*** ***112. Reverting to the instant matter, one of the petitioner’s complaint is the alleged publication of his images and/or photographs by the respondent in its social media accounts without his consent. The petitioner alleged breach of his article 31 rights under the Constitution. He then sought for a declaration as well as compensatory damages.*** ***113. This court ascribes to the position that in a case where Parliament donated powers to an entity like the Data Commissioner to determine if one’s privacy rights under article 31(c) and (d) of the Commissioner are infringed, then it means as much; that the Commissioner has such power determine whether privacy rights as provided for in the Bill of Rights has been denied, violated, infringed or threatened. However, the Commissioner lacks the jurisdiction to interpret the Constitution…*** ***119. The Data Act, therefore, wholly provides for the dispute at hand based on article 31 of the Constitution as well as the remedies sought in the event the dispute is successful.*** ***120. In such a case, it was incumbent upon the petitioner to demonstrate to the court any of the exceptions to the doctrine of exhaustion. The petitioner did not do so.*** ***121. The upshot is that the doctrine of exhaustion applies in this matter and bears a complete bar to the further exercise of jurisdiction by this court on the claim based on article 31 of the Constitution.”*** 1. It is therefore my finding that whereas this Court retains ultimate supervisory jurisdiction, and parties aggrieved by the Data Commissioner's findings can appeal directly to the High Court, this Court lacks initial jurisdiction over the petition because the Petitioner did not first exhaust alternative remedies by filing a complaint with the Data Protection Commissioner. It is to be noted however that, declining jurisdiction does not limit access to justice, given that the available administrative pathway offers an effective solution to the dispute herein. **Article 159(2)(c) of the Constitution** provides a clear justification for this finding since it explicitly promotes alternative dispute resolution mechanisms, so long as they remain consistent with the law, the Bill of Rights and principles of justice and morality. 2. Mwamuye J, citing other decisions in **Arunda v Office of the Data Protection Commissioner & another; Data Privacy and Governance Society of Kenya (Interested Party) (Constitutional Petition E010 of 2025) [2025] KEHC 12262 (KLR) (Constitutional and Human Rights) (12 August 2025) (Judgment),** stated as follows in a similar petition before him: ***“18. In Kirimi & Another v Mobi Changa Ltd [2023], the High Court considered whether parties aggrieved by alleged breaches of the right to privacy could approach the High Court directly. In the cases, the court emphasized the role of the ODPC as the primary forum for dispute resolution in privacy-related matters and endorsed a reading of the DPA that situates the ODPC as a specialized, expert body capable of handling data protection disputes, with the High Court retaining appellate and supervisory jurisdiction. In arriving ate the finding, the court stated thus:*** ***“20. The Act under Section 64 provides for the right of appeal to the High Court by any person offended by any administrative action taken by the Data Commissioner.*** ***21.The foregoing provisions demonstrate that any person claiming a breach of the provisions of Article 31 of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***MUST first file a complaint with the Office of the Data Commissioner and that such a party can only approach the High Court on appeal of the Data Commissioner’s administrative actions.”*** ***19.The Interested Party supports this position and draws the Court’s attention to comparative experiences from South Africa and Uganda. South Africa’s Protection of Personal Information Act (POPIA) creates the Information Regulator with similar functions, and its jurisprudence upholds the constitutionality of delegating such regulatory and remedial powers to non-judicial entities, provided there is appellate recourse. In Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR the High Court of Kenya recognized the importance of institutional mechanisms for the realization of the right to privacy and endorsed the role of the ODPC as a key actor.*** ***20.This Court finds that while Article 23(1) confers original jurisdiction upon the High Court to redress violations of the Bill of Rights, not every dispute involving a constitutional right must necessarily originate in the High Court. As held in Rich Productions Ltd v Kenya Pipeline Co. [2014] eKLR, the existence of statutory mechanisms and administrative tribunals reflects a constitutional vision of accessible, efficient, and expert resolution of specialized disputes. The fact that such determinations are subject to review or appeal to the High Court ensures that constitutional fidelity is maintained. In arriving at the decision, the Court stated as follows:*** ***“The reason why the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and the law establish different institutions and mechanism for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with the technical competence and the jurisdiction to deal with them. While the Court retains the inherent and wide jurisdiction under Article 165 to supervise bodies such as the 2ndrespondent, such supervision is limited in various respects which I need not go into here. Suffice to say that it cannot exercise such jurisdiction in circumstances where the parties before it seek to avoid the mechanisms and processes provided by law, and convert the issue in dispute into a constitutional issue when it is not.”*** 1. Relying on the Supreme Court decision of **Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR)**on exhaustion of remedies, the learned Judge had this to say, and I have no reason to depart from that finding: ***“41. This Court also considers Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR), where the Supreme Court reiterated that the exhaustion doctrine promotes orderly dispute resolution and ensures that statutory bodies are given an opportunity to exercise their specialized mandates. In that case, the Court held that only in rare and exceptional instances, such as when the remedy is ineffective, biased, or manifestly unfair, may a litigant be excused from exhausting administrative remedies. The Supreme Court stated as follows;*** ***“Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism. See also our decision in Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others (Pet No 15 of 2020) [2023] KESC 14(KLR) (Const. and JR) (17 February 2023) (Judgment).”*** 1. Concerning Constitutional avoidance, the learned Judge in the above case stated: ***“43. On the doctrine of constitutional avoidance, this Court is guided by the Court’s formulation in Valentine Odhiambo& 2 others v Hf Development & Investment Ltd & another [2021] KEELC 392 (KLR), where the Court held that courts should avoid deciding constitutional issues if a matter can be resolved through statutory or administrative mechanisms. The Court observed that constitutional litigation should not be the first port of call where other mechanisms are adequate and available. In arriving at that decision, the court stated as follows;*** ***“The 1st Respondent’s objection which is supported by the 2nd Respondent is that the Petition offends the doctrine of constitutional avoidance. In so doing, the 1st Respondent referred to the Supreme Court decision in Communications Commission of Kenya and 5 Others vs Royal Media Services Limited & 5 Others (Supra). The Supreme Court held that the principle of avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.”*** ***The Court further stated:*** ***On the jurisdiction of the Water Tribunal established under the***[***Water Act***](https://new.kenyalaw.org/akn/ke/act/2016/43)***, this Court agrees with the Petitioners that it would not have the jurisdiction to determine any dispute (if any) between them and the 2nd Respondent. Section 121 of the***[***Water Act***](https://new.kenyalaw.org/akn/ke/act/2016/43)***, 2016 stipulates the jurisdiction of the Tribunal. First and foremost being to handle appeals from the decisions of the Cabinet Secretary, the Authority and Regulatory Board or any other person acting under their authority. Secondly, the Tribunal shall hear and determine any dispute concerning water resources or water services where there is a business contract and where parties have not otherwise agreed on alternative dispute resolution mechanism.”*** ***44.In this case, the DPA offers a structured framework that permits the filing and investigation of complaints and the issuance of remedial directives by the ODPC. If dissatisfied with the outcome, the complainant retains the right to appeal to the High Court. The existence of this appellate jurisdiction ensures that constitutional issues that may arise from the ODPC’s actions can ultimately be scrutinized by this Court.*** ***45.Furthermore, in Faraj & 3 others v Police & 2 others [2022] KEHC 287 (KLR), the High Court emphasized that the doctrine of constitutional avoidance is essential in preventing the premature invocation of the***[***Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***and in maintaining the sanctity of judicial time and resources. The principle reinforces the notion that statutory remedies must be pursued to their logical conclusion unless their inadequacy is clearly demonstrated.”*** 1. In the instant case, the petitioner has not demonstrated that he filed any complaint with the Office of the Data Protection Commissioner or that the remedies under the Data protection Act Act are ineffective, considering the provisions of the Act providing for such remedies. 2. In the end, I find that the petitioner failed to exhaust the available effective dispute resolution mechanisms and to adhere to the doctrine of constitutional avoidance. Having said that. I shall not delve into the merits of the petitioner’s claims against the respondent. 3. Accordingly, the Petition dated 21st March 2022 is hereby struck out. The petitioner is at liberty to invoke the provisions of the Data Protection Act for redress. 4. Each party shall bear their own costs of the petition. 5. This file is closed. 6. Orders accordingly. **Dated, Signed & Delivered virtually at Nairobi this 18th Day of August, 2026** **R.E. ABURILI** **JUDGE**