[2023] KEHC 25248 (KLR)

Muthama v Hornbill Pub Limited (Constitutional Petition E005 of 2023) [2023] KEHC 25248 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25248 (KLR)

Republic of Kenya

In the High Court at Machakos

Constitutional Petition E005 of 2023

MW Muigai, J

November 6, 2023

IN THE MATTER OF CONTRAVENTION OF ARTICLES 19,25,28,31 AND 40 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONSTITUTION OF KENYA RIGHTS ENSHRINED IN CHAPTER FOUR THEREOF IN SO FAR AS THE PETITIONER’S CONSTITUTIONAL RIGHTS WERE INFRINGED

Between

Tom Mathoka Muthama

Petitioner

and

Hornbill Pub Limited

Respondent

Ruling

Petition 1. Vide a petition dated 13th March,2023 and filed in court on 14th March,2023 the Petitioner herein sought the following reliefs from the court;a.A declaration be and is hereby issued that the Respondent violated the Petitioner’s fundamental right to privacy and human dignity under Article 28 and 31 of the Constitution by publishing the Petitioner’s image for purpose of commercial advertisement without the Petitioner’s consent.b.A declaration be and is hereby issued that the Respondent violated the Petitioner’s rights under Article 30 of the Constitution by publishing the petitioner’s image and likeness for its own commercial gain with no personal financial advantage gained by the Petitioner.c.A declaration be and is hereby issued that the Petitioner’s intellectual property rights, right of publicity and personality rights was infringed when the Respondent decided to publish the Petitioner’s image in advertising and marketing its products and/or services.d.An order of permanent injunction be and is hereby issued restraining the Respondent from publishing and/or using the Petitioners’ image and likeness in its advertisement or promotions in any way without the Petitioner’s consent.e.An order that the Respondent be compelled to compensate the Petitioner for damages and/or loss arising from the publication of the Petitioner’s photograph without his express authority and the exploitation of the Petitioner by the Respondent for financial gain.f.Costs of the petition be borne by the Respondent.g.Any further relief or orders that this Honorable Court shall deem fit to grant.

Background 2. The Petitioner is aggrieved by the infringement of his image rights, right to privacy and breach of human dignity.

3. The Petitioner averred that on 29th day of July 2022, he visited the aforesaid Respondent’s establishment located within Machakos to accompany his colleagues who had visited the same time for some social time when he discovered a picture/ photograph depicting him had been taken by the Respondent’s agents and /or employees and was being used by the Respondent in advertising and marketing itself for the services and goods it was offering. On conducting a further online search she discovered that public posts and advertisements that were made by the Respondent and all using his photographs were also in its social media platform including but not limited to Facebook with the intent to advertise and endorse its campaign.

4. The Petitioner lamented that on seeing the photograph depicting himself, noted that the picture must have been taken by an authorized servant, agent and/or employee of the Respondent without his consent while was enjoying himself in the company of his friends on the said 29th July,2022.

5. The motive of using the Petitioner’s image and/or photograph was to give the said course visibility which would in turn yield more profits in terms of attracting and retaining more clientele thereby giving its services and products commercial speech.

6. The Petitioner wrote demanding that the Respondent gives an explanation why the Respondent had taken his image and/or photograph without his consent and demanding the same to be pulled down immediately and despite the demand, the Respondent never replied to the same.

7. The Petitioner avers that the Respondent’s use of his image has resulted in people, especially his fellow colleagues in the legal sector assume that he is working in partnership with the Respondent as its Grand ambassador which is not the case. In addition, the Respondent’s use of the Petitioner’s image has put him on the spot in making him explain repeatedly that he is neither in partnership with the Respondent or is he its brand ambassador.

8. Averring that the appropriation of the Petitioner’s image and likeness for commercial benefit of advantage of the Respondent call for the court’s intervention.

Supporting Affidavit to the Petition 9. The Petition is supported by the supporting affidavit sworn on 24th October, 2022 and filed in court on 14th March,2023 by Tom Mathoka Muthama, the Petitioner herein wherein he deposed that he did not authorize anyone to take a photo of him and he strongly believe that someone unknown to him but an employee and/or servant of the Respondent without permission took a photo of him and shared it with the Respondent.

10. He lamented that immediately the Respondent received his letter, it quickly pulled down the said advertisement that used his photograph which is a clear admission of guilt on its part but it never drew a response to the said letter.

11. Deposing that he neither consented to the use of his image nor submitted any of his photographs to the said Respondent to be used in the advertisement, marketing and/or promotion of the products and/or services offered by the Respondent herein. Further that the Petitioner has been subjected to ridicule due to the Respondent’s advertisement of the products and/or services it is offering as he is seen to have endorsed all of the aforesaid products and/or services which sometimes in his clientele can be perceived to be wrong and a person who is not morally fit due to the diversity of the current modern society. Petitioner claims that this has put him to shame before his clientele, peers and society at large as he holds a reputable name as an Advocate of the High Court of Kenya and this does not necessarily mean he endorse all the services, products and/or items offered by the Respondent.

12. The Petitioner deposed that his right to privacy was breached by an act of the Respondent of sharing his image and likeness on its social media platform and other unknown places which have numerous social media traffic/viewers whereas he lives a very reserved life and prefers his privacy.

13. The Petition was disposed of by way of written submissions.

Submissions Petitioners Submissions 14. The Petitioner’s submissions are dated 26th May, 2023 and filed in court on 30th May, 2023 in which mr Kyalo counsel for the Petitioner submitted on the following limbs sequentially.

15. On breach of human dignity and privacy (Article 28 and 31 of the Constitution), counsel while placing credence on the aforementioned provisions submitted that the Petitioner’s private affairs were unnecessarily revealed to the members of the public and thereby infringing on his right to dignity and privacy.

16. It was the Petitioner’s case that as a direct result of the unauthorized use of his image, the Petitioner’s legitimate expectation of his Constitutional right to privacy was breached by the Respondent. To buttress the aforementioned averment, reliance was placed on the case of JWI & another v Standard Group Ltd as considered by the court in the cases of FAF (Suing on her own behalf & as next friend of SAS and NAMS) v Norwegian Refugee Counsel [2019] eKLR.

17. Submitting that the Respondent’s unauthorized publication of his private photos greatly undermined his right to privacy.

18. As regards breach of personality and/or property rights (Article 40 of the Constitution) it was counsel’s submission that the Petitioner’s intellectual property rights were infringed when the Respondent proceeded to publish the Petitioner’s image in advising and marketing its services, submitting that the Respondent published the photograph, it applied a water mark on the said photograph and/or picture. This therefore meant that despite the petitioner being the owner of the said photograph, the Respondent became the proprietor of the said image thereby conferring on itself intellectual property rights over the said photograph.

19. It was the Petitioner’s case that he was the only person who had the exclusive right to market, control and profit from the commercial use of his image, likeness and persona as they constitute the Petitioner’s personally rights. contending that only the Petitioner who had the right to control the commercial exploitation and use of his image including the tight to refuse its publication thereto. Further the publication and use of the Petitioner’s image by Respondent was a breach of his right to privacy because the Petitioner’s personality is restricted realm in which only the petitioner has the power of determining whether a third party may enter and under what conditions.

20. Regarding slavery, servitude and forced labour (Article 30 of the Constitution), counsel averred that the Petitioner herein was subjected to servitude and forced labor. The pertinent reason for the foregoing is due to the fact that the Respondent made financial gain using the Petitioner’s image and/ or photo by marketing, advertising and promoting itself and its services. The respondent never made any restitution to the Petitioner. Submitting that the Respondent exploited the Petitioner herein which exploitation ought to be frowned upon by this Honorable court. to buttress the above point credence was placed on the case of Angella WellsvAtoll Media (PTY) Ltd & another, Western Cape High Court no 11961/2006.

21. It was contended by the Petitioner that as a result of the unlawful publication of the Petitioner’s photographs on the social media platform by the Respondent herein, the Respondent has substantially gained popularity therein. Opining that the reason for the foregoing is because the Petitioner is an Advocate of this Honorable court with good standing and has never been faced with any misconduct either profession wise and/or any other way.

22. It was submitted further that the Petitioner is a person of good moral standing who represents several clients before this Honorable Court and the sub-ordinate courts. Contending that it is the Petitioner’s stand that due to the several clienteles, colleagues and friends as the ones he had on the material day of 29th July,2022.

23. It was contended further that the Respondent herein has not attended court and/or filed any response to the averments in that the publication of the Petitioner’s photos were not for commercial gain. Urging that damages being the sum of ksh 5,000,000/= would suffice herein as damages for unlawful and illegal publication of the petitioner’s photographs. Counsel relied on the case of JMK & another v Standard Digital & another [2020] eKLR, where the court awarded ksh 4,000,000 for maligning someone’s reputation.

Determination/Analysis 24. The Court considered the pleadings and submissions on record and the matter for determination is whether the Petitioner’s claim is proved by law and if so what redress is to granted by the Court.

25. Upon perusal of the file and reflection, this Court has since learnt that the parties herein are known to /by this Court and the Court hereby recuses itself to allow the parties a fair hearing under Article 50 of the Constitution.

26. The matter shall be placed before Court no 2 for further directions and orders.

27. Further mention for directions on 4/12/2023 in Court no 2.

JUDGMENT DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 6TH NOVEMBER, 2023 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn the presence of:Mr. kyalo - for the petitionerNo appearance- for the respondentGeoffrey/patrick - court assistant(s)