[2022] KEHC 13949 (KLR)

Njiru v Nature & Style Fun Day Events & another; Kahaari Creations Limited (Third party) (Petition 146 of 2018) [2022] KEHC 13949 (KLR) (Constitutional and Human Rights) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13949 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 146 of 2018

HI Ong'udi, J

October 13, 2022

Between

Kitty Njiru

Petitioner

and

Nature & Style Fun Day Events

1st Respondent

Tatiana Isabel Whitup

2nd Respondent

and

Kahaari Creations Limited

Third party

Judgment

1. Before court for determination is the petitioner’s petition dated April 13, 2018 and the respondent’s chamber summons application dated November 27, 2020.

2. The petitioner seeks the following reliefs: -a.That there be a declaration that the petitioner’s fundamental rights and freedom as enshrined under Article 28 of theConstitution of Kenya have been contravened and infringed upon by the respondentsb.That there be a declaration that the petitioner’s fundamental rights and freedoms as enshrined under Article 29(d) of theConstitution of Kenya have been contravened and infringed upon by the respondents.c.That there be a declaration that the petitioner’s fundamental rights and freedoms as enshrined under Article31(c) of theConstitution of Kenya have been contravened and infringed upon by the respondents.d.General damages, exemplary damages, and aggravated damages under Article 23(3) of theConstitution of Kenya be awarded, for violations of the petitioner’s rights by the respondentse.Payment of Kshs 150,000/- being the rightful reward for use of the petitioner’s images.f.The costs be provided for the petitioner

3. The application is brought pursuant to Order 1 Rule 22 of the Civil Procedure Rules 2010 and an order of the Court delivered on October 29, 2020. It is seeking for orders that:i.This Honourable Court be pleased to issue directions regarding the determination of the liability of the 3rd party.ii.Cost of the application be in cause.

4. The grounds upon which the application is based on are that:1. The respondents have been accused of infringing the rights of privacy of the petitioner by allegedly causing her images to be published.2. The respondents obtained the images from the 3rd party who indicated that she had consent from the petitioner to use her images for online purposes.3. It was as a direct result of the respondent’s belief in the 3rd party’s claim of authority to use the petitioner’s images that they were then used.

5. On November 8, 2021 this Court directed that the application will be determined in the petition. The application is supported by the Affidavit of the 2nd respondent sworn on even date. Reiterating the grounds on the face of the application about the acquisition of the photographs from the third party and on the belief of authority and subsequently using them, she deposed that if the petitioner’s rights were infringed, this was done by the 3rd party.

The petitioner’s case 6. The petitioner’s case is supported by her affidavit sworn on April 13, 2018. She has deponed that in February 2018 the 1st respondent caused her image to be published in the February Edition of the Kenya Buzz magazine and other online platforms to advertise its event titled' Fashion & Lifestyle 4th Edition 2018'. The petitioner is a model and had no relation, contractual or otherwise, with the respondents and / or the magazine and was surprised when she came across the publication as it was done without her authority or consent and without any rights whatsoever.

7. It is averred that the publication is an exploitation and abuse of her image rights by the respondent for commercial gain and benefit without any compensation or reward. The said publication infringed on her personal rights including dignity and privacy. She claims to have been psychologically and emotionally affected as the respondents completely disregarded her work ethics. By reasons of the aforesaid actions, the respondents violated Articles 28, 29(d) and (f) of theConstitution.

The respondents’ response 8. The respondents filed a replying affidavit and a further replying affidavit sworn by the 2nd respondent on July 18, 2018 and September 30, 2021 respectively. She deposed that she obtained the images forming the basis of the petition from a designer by the name Rebecca Muriuki a director of the third party who provided consent to the respondents for purposes of showcasing an event. The said Rebecca had laid down no restrictions upon sending her the images.

9. Subsequently, they posted the images on their Facebook and twitter page and further sent an awareness poster created with the image to the Buzz Kenya which was to be uploaded on their online site (www.kenyabuzz.com). The images were sent through email on December 29, 2017 at 11. 20 am. She deponed that the petitioner called her in early February indicating that her oral contract with Rebeca Muriuki was that the images would only be used online, demanding Kshs 5,000 since Kenya buzz had printed out the images on the free newspaper.

10. Consequently, she reached out to Rebecca Muriuki who confirmed the assertions by the petitioner and that she had paid the petitioner Kshs 5,000/- for the shoot where she acquired the petitioner’s image. She denied that the respondent was aware that the model had not been informed about the use of the images since Rebecca provided consent and indicated that she had compensated the models for the use of their images; the said use was not in any way intended to abuse the petitioner’s image rights.

11. According to her, it was unclear how the figure of Kshs 150,000/- was arrived at noting that the petitioner had previously demanded Kshs 60,000 in her letter dated February 20, 2018 as well as the Kshs 5,000/- during the first phone interaction. In any event the right party to be sued she deposed, was Rebecca Kahaari who provided her with the images without disclosing the petitioner’s stipulations regarding use of the image.

12. In the further replying affidavit, she denied giving any indication to the third party that photographs of models shared with her would only be used with attribution to her business. Further that it is an explicit term of all her agreements with entities providing photographs for publicity that the said photographs would be used by the 1st respondent and herself for any marketing or promotion unless and until a formal notification from the entity is received stating that the photographs should no longer be used. As such, she denied receiving any communication informing her to stop using the images provided to her by the 3rd party.

13. She averred that the petition did not claim that any infringement of rights was caused by having the petitioner’s images published on print media and in fact acknowledged that Kenya buzz is an online distribution platform. She deposed that the conversation introduced by the third party was misleading to the petitioner regarding the terms and conditions under which she accepted the photographs for use in marketing. Further that the third party had not laid any basis for her claims of unclean hands, bad faith, and malice.

The third party’s response 14. The third party filed a replying affidavit by Rebecca Muriuki sworn on August 5, 2021 in response to the petition and application by the respondent and grounds of opposition dated May 27, 2021 in respect of the application. She raised the following grounds;1. The petition makes no claim of infringement or any violation whatsoever of the petitioner’s rights by the third party.2. The respondents have not filed any cross – petition or clearly shown the provision of theConstitution that has been infringed by the third party that would in turn violate the petitioner’s constitutional rights.3. It has not been shown that the third party has an identifiable legal interest in these proceedings.4. The third party’s presence is not necessary for this Honourable Court to adjudicate on the constitutional claims between the petitioner and the respondents or to decided whether the respondents breached the petitioner’s constitutional rights.5. The application should be dismissed.

15. In the replying affidavit, she deposed that the third party entered into an oral agreement with the petitioner on July 27, 2017 wherein the petitioner agreed to model the third party’s design for a consideration of Kshs 5,000/-. Subsequently photos subject of this petition were taken on July 30, 2017 at Sun Africa Studio, Parklands with the express consent of the petitioner. That from the agreed terms of the said oral agreement, the petitioner authorized and consented to capture and use of her photographs taken on July 30, 2017 by the 3rd party and /or its employees, agents and all affiliated entities, for the express purpose of marketing its business designs in any manner whatsoever, including without limitation, reproduction by all media, including social media platforms.

16. She deposed that copyright in photographs is the property of the person who presses the shutter on the camera and not the person who owns the camera or even the person in the photo save for where there is a written agreement that makes the photo a work for hire. She averred that the said oral agreement is enforceable as it is not one of the agreements that is required to be in writing. Hence the petitioner cannot turn a blind eye to it and that she shared the petitioner’s photographs on the 3rd party’s social media pages and website in good faith. Further, the petitioner herself shared some of the photos on her social media handle and tagged the third party.

17. She deposed that she was approached by the respondent on or about July 2017 concerning a fashion event she was organizing on September 30, 2017 requesting her to be one of the participants to which the third party agreed. Further that on July 15, 2017, the third party booked a vending spot and paid Kshs 8,000/- to the respondent in consideration of them allowing the third party to show case and sell products at the said 2017 event. The 2nd respondent requested her to submit some of its business design work indicating that the same would be part of the said 2017 event portfolio under the third party’s name.

18. She averred that she was surprised when the 2nd respondent used the petitioner’s images she had shared as a cover on an advertisement of the said 2017 event without mentioning the third party and / or featuring its logo anywhere on the cover contrary to their agreement.

19. She deposed that on September 26, 2017, she made a further payment of Kshs 7,200/- to the 1st respondent on the third party’s behalf which was to be utilized in paying models who wore the third party’s merchandise on the runway show during the event on September 30, 2017. Subsequently, the third party did not make any other payments to the respondents or participate in any other of their events. Further, that the petitioner’s claim relates to the use of her images in another event by the respondents in 2018 which event she was unaware of, and did not participate or authorize the use of the petitioner’s photographs. She therefore averred that some of the petitioner’s photographs were used in clear violation of the alleged consent terms with no explanation.

20. She denied knowing or being made aware of the 2nd respondents Facebook page on the use of the photographs submitted to it. She further deponed that the respondents have not come to court with clean hands, since their application for the third party’s joinder to this suit and for directions on liability are mischievous and deliberately designed to assist them evade liability. She urged the Court to dismiss the claims against it with costs.

The petitioner’s submissions 21. The petitioner filed submissions dated November 19, 2018 by GNK & associates raising the following issues;i.Whether the pictures the subject-matter of these proceedings were published with the petitioner’s knowledge, consent and / or authority; andii.Whether the petitioner is entitled to the remedies / reliefs sought

22. On the first issue, counsel reiterated that the publication was made without the petitioner’s knowledge, consent and authority. The respondent has demonstrated that they obtained consent from the third party, and not the petitioner.

23. On the second issue, and relying on Articles 28 and 31 of theConstitution and the cases of Roshanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR and Rukia Idris Barri v Mada Hotels Ltd [2013] eKLR, counsel submitted that the petitioner’s rights were violated and she is entitled to an award of general damages for unacceptable exploitation of her photographs for commercial purposes without her consent. She urged the court to grant Kshs 300,000/- as damages for every unauthorized publication and general damages of Kshs 1,500,000/- with interest at court rates from the date of judgment until payment in full for general damages.

24. She further submitted that the Kshs 150,000/- was based on the maximum fees of Kshs 30,000/- that the petitioner has ever charged for modeling multiplied by the number of times that her images were published by the respondent. She asked for costs of the suit.

The respondent’s submissions 25. The respondents filed submissions dated December 2, 2021 by Nyauchi & company advocates raising the following issues:i.Should the liability, if any for publishing of the petitioner’s image be attached to the third party?ii.Is the petitioner claiming a breach of her right of privacy or publicity and what is the effect of this?iii.Has a breach of constitutional rights been proved?iv.What is the quantum of damages, if any, that should be awarded to the petitioner?v.Who should bear the costs of this Petition?

26. On the first issue, and relying on the case of Roshanara Ebrahim v Ashleys Kenya Limited & 3 others [2016] eKLR, counsel reiterated that the petitioner in this matter voluntarily took photographs and entrusted them to the third party who then forwarded the same to the respondents with full knowledge of the use they would be put to having had access to the terms and conditions in the respondent’s Facebook page. The respondents subsequently made use of them. Further, the third party, did not inform the respondents of any restrictions to the use of the photographs and did not subsequently write to them to stop using the photographs. Hence the respondents are innocent and any liability for breach of the petitioner’s rights should be laid on the third party.

27. On the second issue, counsel relied on the case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstructions Center & 2 others [2017] eKLR and submitted that the petitioner admitted that she makes a living from modelling; It has been shown that the image which are subject of this petition were created with commercial gain in end. As such, what is before this court is not a breach of privacy but a breach of publicity claim. As the images were used for their intended purpose claims of torture and loss of dignity should not be entertained

28. On the third issue, it is submitted that the petitioner has not demonstrated that she did not consent to the third party passing on her photographs for use. Further on the fourth, issue counsel submitted that if liability should attach then it has been shown that the petitioner’s model work attracted at the time of publishing Kshs 5,000/-. That should be considered as the extent of the damages.

29. Counsel asked for costs in terms of the monies spent in the defence of this petition as the issue at stake was clearly between the petitioner and the third party and the respondents were dragged in for no reason.

The third party’s submissions 30. The third party filed submissions dated December 16, 2021 by Onyango & Tarus advocates raising the following issues:i.Whether there was an agreement between the petitioner and the third party for the use of her photographsii.Whether the third party participated in the 1st respondent’s 2017 edition or the 2018 edition of its fashion & lifestyle eventiii.Whether the petitioner’s claim relates to the 1st respondent’s 2017 edition or the 2018 edition of its fashion & lifestyle event; andiv.Whether the 1st respondent’s alleged Facebook terms and conditions: (i) existed at the time it contracted with the third party; (ii) were disclosed to the third party; (iii) complied with the requirements under theConstitution of Kenya 2010 and the Consumer Protection Act; andv.Who should bear the costs of this suit?

31. On the first issue, counsel reiterated that the petitioner authorized and consented to the capture and use of her photographs, taken on July 30, 2017, by the third party and/ or its employees for the express purpose of marketing its business designs in any manner whatsoever, including without limitation, reproduction in all media including social media platforms; the issue of copyright in a photograph; and the petitioner sharing some of her photos on her social media handle and endorsing third party’s products.

32. On the second issue, counsel submitted that the third party had not made any other payments to the respondents or participated in any of their other events other than the said 2017 one.

33. On the third issue, it insisted that the petitioner’s claim relates to the use of her images by the respondents in another of their fashions in February 2018 which was unknown to the third party. It never authorized the use of the petitioner’s photo in the said fashion event. There was no explanation advanced as to why the photographs were published outside of the agreed alleged consent terms. Further there was no explanation given for the use of those photographs in the 2018 event.

34. On the fourth issue, counsel submitted that Article 46 of theConstitution and the Consumer Protection Act are applicable to this matter as there was an agreement for provision of a service between the respondents and the third party. Relying on sections 2, 31, 32 and 87 of the Consumer Protection Act, it was submitted that on or about July 2017 when the third party contracted with the 1st respondent for the said 2017 event, the third party was not aware nor made aware by the respondents of any terms and conditions on the 2nd respondent’s Facebook page on the use of photographs submitted to it.

35. Counsel further submitted that the terms and conditions on the 1st respondent’s Facebook page on the use of photographs fall squarely under the ambit of internet and/ or remote agreements as outlined in the Consumer Protection Act. That prior to entering into any internet agreement, the third party had the right to access information that would guide it in making informed decisions. He argues that the respondents ought to have promptly delivered a copy of the impugned terms and conditions to the third party.

36. He contended that the 1st respondent’s failure to disclose the impugned Facebook terms and conditions infringes on the third party’s consumer rights under Articles 46 of theConstitution, contravenes section 56 of the Competition Act No 12 of 2010, and amounts to an unfair trade practice as provided for under section 12 (2) (n) of the Consumer Protection Act. Since the 1st respondent’s alleged Facebook terms and conditions breached the express requirements under sections 12 and 31-38 of the Act, they are null and void and not binding on the third party.

37. Counsel argued that the respondents have not furnished any proof that, the impugned Facebook terms and conditions existed at the time the third party contracted with the 2nd respondent for the 2017 fashion event, nor disclosed them to the third party if they existed. There is nothing to show that such terms and conditions were ever delivered to the third party.

38. Counsel submitted that from the foregoing, the impugned Facebook terms and conditions relied upon by the respondents are a sham, aimed at disfranchising the third party of its consumer rights under Article 46 of theConstitution and under the Consumer Protection Act and cannot pass judicial scrutiny. He based his argument on CIS v Directors, Crawford International School & 3 others [2020] eKLR; LTI Kisii Safari Inns Ltd & 2 others v Deutshe Investions -Und Enwicklungsgellschaft (Deg’) & others [2011] eKLR; Lloyds Bank Ltd vs Bundy [1975] QB 326 and Schroeder Music Publishing Co vs Macaulay [1974] 1 WLR 1308; and Margaret Njeri Muiruri v Bank of Baroda (Kenya) Limited [2014] eKLR.

39. Counsel referred to Party of Independent Candidate of Kenya & another vs Mutula Kilonzo & 2 others among others as he sought for costs.

Analysis and determination 40. Having carefully considered the petition, the responses, submissions, case law and the law I find the following issues to arise for determination: -i.Is the petitioner claiming a breach of her right of privacy or publicity and what is the effect of this?ii.Whether the petitioner’s rights under Articles 28, 29(d) and 31(c)of theConstitution were violated.iii.Whether the third party is liableiv.Whether the petitioner is entitled to the reliefs sought

Issue no. (i). Is the petitioner claiming a breach of her right of privacy or publicity and what is the effect of this? 41. The respondents raised this issue in their submissions and argued that the petitioner having admitted that she makes a living from modelling and that the images complained of were created with commercial gain in end, this claim is not for breach of privacy but a breach of publicity. The petitioner and third party did not submit on this issue. I have also read through the pleadings by the respondents and noted that the same was not pleaded or raised in the pleadings.

42. The Supreme Court of Kenya in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -'In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings’Also see Daniel Otieno Migore v South Nyanza Sugar Co Ltd [2018] eKLR.

43. This issue raised by the respondents was not raised in the pleadings. I will therefore not consider it as doing so would amount to pleading for the parties.

Issue no. (ii). Whether the petitioner’s rights under Articles 28, 29(d) and 31(c) of theConstitution were violated 44. The petitioner’s central assertion is that the 1st respondent published her image in February 2018 Edition of the Kenya Buzz magazine and other online platforms devoid of her consent. She claims that the publication is an exploitation and abuse of her image for commercial gain and benefit without any compensation or reward which in turn violated her fundamental rights. The respondents on the other hand while acknowledging the use of the petitioner’s image for the said event, state that they were given the image by the third party and on the premise that the third party had consent to use them. Further that the third party laid down no restrictions as to the use of the images nor stopped them from using the images. They also denied indicating to the third party that the images were to be solely used with attribution to her business.

45. The third party admitted to entering into an oral agreement with the petitioner who agreed to model its designs for Kshs 5,000/-. Further that the petitioner agreed to the use of her photographs taken by the third party without limitation on all media and social media platforms. It submitted that it never participated in the 2018 event and the agreement was for use of the images on the online platform and not print media. Further, that it did not authorise the use of the images in the 2018 event and no rights contravened have been attributed to its actions.

46. The main point of contention is the use of the petitioner’s images by the respondent which were taken by the third party pursuant to an alleged oral agreement. At the moment there is no specific law in Kenya that provides for image rights. Jurisprudence has however sought to address this right through adjacent laws such as the Copyright Law and violation of the right to privacy and dignity as envisaged in the Constitution. This phenomenon in a picture has been described as a person’s image rights.

47. A person’s image rights was defined in the case of Jessicar Clarise Wanjiru (supra) where the Court expressed itself as follows:'17. In simple terms, image rights refer to a person’s right to commercialize aspects of his personality such as physical appearance, pictures or caricatures, signature, personal logos and slogans, and also the right to prevent other people from commercially making use of them. In a claim of this nature, the plaintiff raises wrongful infringement of three inter-related, but distinct, personality interests, namely identity, privacy and dignity.18. Identity is defined as a person’s uniqueness which individualizes such person, and is manifested in various facets of personality (or indicia) which include, among other things, one’s physical appearance or image and is considered a separate right of personality.[6]'

48. Likewise, the England and Wales High Court in the case of Proactive Sports Management Ltd v Wayne Rooney & 3 others’ [2010] EWHC 1807 (QB) at paragraph 187 defines image rights in a wider scope as follows:'The definition of Image Rights is comprehensive and it may be helpful to set it out in full. It is in these terms:'Image rights means the right for any commercial or promotional purpose to use the Player’s name, nickname, slogan and signatures developed from time to time, image, likeness, voice, logos, get-ups, initials, team or squad number(as may be allocated to the player from time to time), reputation, video or film portrayal, biographical information, graphical representation, electronic, animated or computer-generated representation and /or any other right or quasi-right anywhere in the world of the player in relation to his name, reputation, image, promotional services, and/or his performances together with the right to apply for registration of any such rights.'

49. It is now well appreciated that the nature of this right should indeed be protected as observed in the South African case of Wells v Atoll Media (Pty) Ltd and another (11961/2006) [2009] ZAWCHC 173; [2010] 4 All SA 548 (WCC)where it was opined that:'(48)In Grutter v Lombard and another 2007 (4) SA 89 (SCA), at para 8 Nugent JA, in a most carefully researched judgment, noted that it was generally accepted academic opinion that features of a personal identity are capable and indeed deserving of legal protection.(49)In the context of this case, therefore, the appropriation of a person's image or likeness for the commercial benefit or advantage of another may well call for legal intervention in order to protect the individual concerned. That may not apply to the kinds of photographs or television images of crowd scenes which contain images of individuals therein. However, when the photograph is employed, as in this case, for the benefit of a magazine sold to make profit, it constitutes an unjustifiable invasion of the personal rights of the individual, including the person's dignity and privacy. In this dispute, no care was exercised in respecting these core rights.'

50. The existing jurisprudence as seen in the cited authorities is that violation of one’s image rights is synonymous to violation of one’s right to privacy and dignity. This also puts to rest the issue raised by the respondents as to whether the petitioner’s claim is on breach of her right to privacy or of publicity. The petitioner averred that she makes a living from modelling and that the images complained of were created with a commercial gain. This has not been rebutted. The above cases especially the case of Jessicar Clarise Wanjiru (supra) has clearly stipulated that in cases such as this, the plaintiff raises wrongful infringement of their interrelated but distinct, personality interest, namely identity, privacy and dignity. This is what has been raised by the petitioner herein.

51. TheConstitution under Articles 28 and 31(c) provide for protection of these rights as follows:Article 28;Every person has inherent dignity and the right to have that dignity respected and protected.Article 31;Every person has the right to privacy, which includes the right not to have--(c)Information relating to their family or private affairs unnecessarily required or revealed.

52. The Court in the case of Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya &10 others [2015] eKLR emphasized the importance of the right to privacy as follows:'285 The right to privacy is guaranteed under Article 31 of theConstitution.286. The right to privacy has also been expressly acknowledged in international and regional covenants on fundamental rights and freedoms. It is provided for under Article 12 of the UDHR, Article 17 of the ICCPR, Article 8 of the European Convention on Human Rights (ECHR) and Article 14 of the African Charter on Human and Peoples’ Rights.287. B. Rossler in his book, The Value of Privacy (Polity, 2005) p 72, explains the right to privacy.288. As to whether there is need to protect privacy, he goes on to write that:'Protecting privacy is necessary if an individual is to lead an autonomous, independent life, enjoy mental happiness, develop a variety of diverse interpersonal relationships, formulate unique ideas, opinions, beliefs and ways of living and participate in a democratic, pluralistic society. The importance of privacy to the individual and society certainly justifies the conclusion that it is a fundamental social value, and should be vigorously protected in law. Each intrusion upon private life is demeaning not only to the dignity and spirit of the individual, but also to the integrity of the society of which the individual is part'.

53. With reference to the right to dignity, the court in the case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR held that:'50. As regards the right to dignity, in Ahmed Issack Hassan vs Auditor General [2015] the Court held that:'The right to human dignity is the foundation of all other rights and together with the right to life, forms the basis for the enjoyment of all other rights…put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated'. See Francis Coralie Mullin v Administrator, Union Territory of Delhi (1981) SCR (2) 516. '

54. The right to privacy necessitates that a person’s private details are not consumed by the public without his/her consent which essentially violates their right to dignity. The decision in the case of Jessicar Clarise Wanjiru (supra) serves as an essential reference point to underscore this point:'23. ‘Privacy’, ‘dignity’, ‘identity’ and ‘reputation’ are facets of personality. All of us have a right to privacy and this right, together with the broader, inherent right to dignity, contributes to our humanity.24. It is the personality rights of dignity and privacy that underscore individuality and set both the limits of humanity and of human interaction. But, the reasons for protecting privacy are wider than just protecting the dignity of the individual.'

55. Similarly, the European Court of Human Rights in the case of Von Hannover v Germany (no 2) (nos 40660/08 and 60641/08) while making a determination on the right to privacy in a case where the claimant, Princess Caroline von Hannover, had applied to the German courts for an injunction preventing any further publication of two series of photographs relating to her private life which had appeared in German magazines, on the ground that they infringed her right to protection of her private life and of her own image opined as follows:'(i)Concerning private life95. The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person’s name, photo, or physical and moral integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is thus a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life. Publication of a photo may thus intrude upon a person’s private life even where that person is a public figure (see Schüssel v Austria (dec), no 42409/98, 21 February 2002. 96. Regarding photos, the Court has stated that a person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof (see Reklos and Davourlis v Greece, cited above, § 40).'

56. From the above decisions it is clear that the law places on the petitioner the duty to prove the purported violation of her constitutional right by the respondents by satisfying the established elements in a claim of violation of image rights.

57. The Court in the case of N W R & another v Green Sports Africa Ltd & 4 others [2017] eKLR highlighted the elements as follows:i.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.In my view, the images used belong to the minors and their images are protected by the law.ii.For an Exploitative Purpose: The plaintiff must show that the defendant used his name, likeness, or other personal attributes for commercial or 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 a reasonable relationship between the use of the plaintiff's identity and a matter of legitimate public interest.In my view, the first Respondent has not demonstrated that the use of the images was purely for public interest and not for commercial interest or benefit on their behalf. The second Respondent is on record stating that it sponsors such activities. Whether or not the first Respondent benefits from such sponsorship is an issue that was not adequately addressed nor can it be ruled out.iii.No Consent: The plaintiff must establish that he or she did not give permission for the offending use.'

58. In the same way, the High Court in Uganda in the case of Asege Winnie v Opportunity Bank (U) Ltd & Another HCCS No 756 of 2013 observed as follows:'Under the common law jurisprudence a personality right is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one's identity. This right to personality is classified into two categories;The right of publicity or to keep one's image and likeness from being commercially exploited without permission or contractual compensation and the right to privacy, and;The right to be left alone and not have one's personality represented publicly without permission.This means that where there is a publicity rights contention then the issue for the court to deal with and decide upon is whether a significant section of the public would be misled into believing (correctly or incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which a plaintiff agreed to an advert involving the image or reputation of a famous person. The actionable cause, therefore, under misrepresentation would then bring the suggestion that a plaintiff did in fact endorse or license a defendant's product or somehow has control over those products. Arising from this seemingly clear common law jurisprudence, it is my humble view that for one to succeed in an action for infringement of image rights such a person has to prove the following basic elements:- The plaintiff must be identifiable.- The defendant’s action was intentional.- The defendant must have acted for the purpose of commercial gain.'

59. A perusal of the facts of this case reveals that the petitioner’s status as a model is not disputed. Further the fact that the image taken was for commercial purposes by the third party and she consented to the use of her image by the third party, is also not disputed. What is in contention and what the petitioner is complaining about, is the use of her image by the respondents without her consent, authority and knowledge. This was also contrary to the agreement that she had between herself and the third party. There is no indication whatsoever that the petitioner allowed her images to be passed off to third parties for their own use and to be used on print media. While the third party has pleaded that there were no limitations as to the use of the images, it has failed to demonstrate the same to this court.

60. The respondents have not adduced evidence to show that they were authorised by the petitioner to act as they did. Furthermore, in the alleged contract with the third party, they have aptly stated that they got the images for online use only but in this case, the claim is that the images were put on print media. The images were also used in a 2018 event wherein the third party was not a participant & neither had the authority to use the petitioner’s images.

61. The respondents have not adduced evidence to the effect that they got authorisation to use the images in the 2018 fashion event or a contract to show that the agreement between them was to subsist beyond September 30, 2017. Hence that claim by the respondents does not hold water. It is important to note that the respondents have failed to demonstrate that the petitioner’s images were published in public interest and that they did not gain commercially from the said publication in print media.

62. By reason of the aforesaid, the petitioner has established the element of use of a protected attribute which was used for an exploitative purpose without her consent as elaborated in the shared authorities above. That the images were used by the respondents for their commercial gain is not denied. They have also not demonstrated that the use was purely for public interest. The respondents and third party on the flip side have failed to dislodge the petitioner’s evidence. The petitioner’s rights as provided under Article 28 and 31(c) of theConstitution were therefore violated.

63. Article 29(d) of theConstitution states as follows:Every person has the right to freedom and security of the person, which includes the right not to be-(d)Subjected to torture in any manner, whether physical or psychological;

64. The Court of Appeal in the case of Michael Maina Kamami & another v Attorney General [2019] eKLR while examining what amounts to torture observed as follows:'Black’s Law Dictionary, 10th edition, defines 'torture' as'The infliction of intense pain to the body or mind to punish, to extract a confession or information, or to obtain sadistic pleasure'.

65. The Court went further to note that:'The European Court of Human Rights has defined torture and inhuman treatment in the Greek Case 1969 YB Eur Conv on HR 186 (Eur Comm’n on HR in the following terms;'The notion of inhuman treatment covers at least such treatment as deliberately causes suffering, mental or physical, which, in the particular situation is unjustifiable. The word ‘torture’ is often used to describe inhuman treatment, which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment. Treatment or punishment of an individual may be said to be de-grading if it grossly humiliates him before others, or drives him to an act against his will or conscience.'

66. A consideration of the facts of this case with regard to the above decision discloses the failure by the petitioner to adduce evidence demonstrating that she was subjected to psychological torture and suffering by the respondents’ actions. The petitioner has therefore failed to establish the element of psychological torture as addressed in the Court of Appeal case. It was her duty to prove that element.

Issue no.(iii). Whether the third party is liable 67. The respondent submitted that the petitioner voluntarily took photographs and entrusted them to the third party who then forwarded to them with full knowledge of the use they would be put to having had access to the terms and conditions in the respondent’s Facebook page. That the third party did not inform them of any restrictions to use the photographs and did not stop them from the use hence they are innocent.

68. The third party on the other hand submitted that the agreement between them was confined to the 2017 event and that they had since not made any other payments to the respondents or participated in any other events. Further that the petitioner’s claim was in relation to the use of her images by the respondents in the 2018 event in which they never participated or authorised the use of the petitioner’s images. It added that the agreement between it and the petitioner was for the images to be used for online purposes only.

69. The third party also brings into perspective Article 46 of theConstitution and the applicability of the Consumer Protection Act. In so doing it, argues that the respondents breached the requirements therein by failing to make it aware of the respondents’ Facebook terms and conditions on the use of the photographs submitted to it and failing to deliver a copy of the same to them, nor even proof that the same existed at the time of contracting.

70. The Consumer Protection Act No 46 of 2012 is the Act that gives effect to Article 46(2) of theConstitution. Section 2, the said Act defines Consumer, consumer agreement, internet agreement and supplier as follows:'Consumer' means-(a)A person to whom particular goods or services are marketed in the ordinary course of the supplier's business;(b)A person who has entered into a transaction with a supplier in the ordinary course of the supplier's business, unless the transaction is exempt from the application of this Act;(c)A user of particular goods or a recipient or beneficiary of particular services, irrespective of whether that user, recipient or beneficiary was a party to a transaction concerning the supply of those particular goods and services; and(d)A franchisee in terms of a franchise agreement, to the extent applicable in terms of this Act;'Consumer agreement" means an agreement between a supplier and a consumer in which the Supplier agrees to supply goods or services for payment;'Internet agreement' means a consumer agreement formed by text-based internet communications;'Supplier' means a person who is in the business of selling, leasing or trading in goods or services or is otherwise in the business of supplying goods or services, and includes an agent of the supplier and• a person who holds himself out to be a supplier or an agent of the supplier;

71. Besides the definitions cited above and for completion of the arguments I refer to Sections 31, 32, 33, 77 & 87 of the Consumer Protection Act, which are important in this matter.

72. Based on the cited provisions of theConstitution and the Consumer Protection Act, it is clear that the agreement mentioned herein is in the nature of a consumer agreement. The images sent to respondents by the third party, were for the purposes of marketing the third party’s merchandise, and that in essence is a service which rightly falls under Article 46 of theConstitution. Secondly by virtue of the fact that the agreement was internet based it is an internet agreement and the provisions of section 31 of the Consumer Protection Act apply to it.

73. It was thus a requirement that the respondents make the third party aware of its Facebook terms and conditions to enable it make an informed decision before sharing the images. Further, the respondents were also obligated to deliver a copy of the said terms and conditions to the third party. This obligation was not complied with and no evidence has been adduced to demonstrate the same. As rightly stated by the third party, the respondents have also not adduced any evidence to the effect that the said Facebook terms and conditions being referred to were existing at the time of the contract and that they were brought to the attention and knowledge of the third party. This was a contravention of Article 31, and 87 of the Consumer Protection Act and it amounted to unfair trade practise and by dint of section 77 of the Consumer Protection Act, the third party is not bound by such an agreement.

74. The third party has pleaded that the agreement was in respect to a fashion event of 2017 and not the event of February 2018. Further that the agreement was that the photos were to be used on online platforms and not print media. This fact has been admitted by the respondents while referring to the agreement between them and the third party. A point to note is that the respondents have not refuted or rebutted that contention, neither have they adduced any evidence or demonstrated that the agreement between them and the third party was to subsist beyond the 2017 event and that the images in contention were not use in the 2018 event. The respondents have also admitted that the images were to be used for online purposes only but in this case were put in print media which was contrary to their agreement.

75. An assessment of the entire case confirms that the petitioner has not alluded to or proved any violations against her by the third party

Issue no. (iv). Whether the Petitioner is entitled to the reliefs sought 76. Drawing from the conclusion that the rights of the petitioner under Article 28 and 31 of theConstitution were violated, the next question to be answered is whether the petitioner is entitled to the reliefs sought. The petitioner submits that her image was used by the respondents in their publication but she did not enjoy any monetary benefit. She claims Kshs 300,000/- for every unauthorized publication and Kshs 1,500,000/- for general damages with interest at courts rates from the date of judgment until payment in full. She further claims Kshs 150,000/- based on the maximum fees of Kshs 30,000/- she had ever charged for modelling multiplied by the number of times that her image was published by the respondents. The respondents submitted that the only amount that has been proved Kshs 5,000/- for the petitioner’s model work at the time of publishing.

77. To start with, it is worthy to note that the petitioner did not elucidate how she arrived at the Kshs 150,000/- figure as a reward for use of her image by the respondents. Besides stating that the same was arrived at based on the maximum fees of Kshs 30,000/- she had ever charged for modelling multiplied by the number of times her image was published by the respondents, she has not adduced any evidence in terms of receipts to show the Kshs 30,000/- charged. Further there is no evidence to demonstrate the number of times her images were published by the respondents. This item is a special damage which must not only be pleaded but must also be proved. I find the claim not proved.

78. The only amount proved and which I agree with the respondents, if any is the Kshs 5,000/- that she was paid by the third party while consenting to her images being used. She is hence entitled to Kshs 5,000/- as special damages.

79. There is also the amount of Kshs 300,000 that the petitioner has made reference to. She has not proved as to how she arrived at that figure and besides that, the same was not pleaded in the petition. I therefore disregard it.

80. Moving on, where it is determined that a party’s rights have been violated, that party is entitled to damages as per the court’s estimation in its discretion. I am persuaded by the decision in the case of Peter Mauki Kaijenja & 9 others vs Chief of the Defence Forces & another [2019] eKLR where it was held that:'96. Award of damages entails exercise of judicial discretion, which should be exercised judicially. The discretion must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Courts.'

81. When it comes to an award for general damages, the courts are guided by the principles that have been established through various authorities. The Court of Appeal while shedding light on this principle in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR opined as follows:'The South African Case of Dendy v University of Witwatersrand, Johannesburg & Others - [2006] 1 LRC 291 where the Constitutional Court of South Africa held that:'The primary purpose of a constitutional remedy was to vindicate guaranteed rights and prevent or deter future infringements. In this context an award of damages was a secondary remedy to be made in only the most appropriate cases.'The primary object of constitutional relief was not compensatory but to vindicate the fundamental rights infringement and to deter their future infringement. The test was not what would alleviate the hurt which plaintiff contended for but what was appropriate relief required to protect the rights that had been infringed. Public policy considerations also played a significant role. It was not only the plaintiff's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.'

82. Likewise, the Court of Appeal while stating the principles of assessment of this damage in the case of Peter M Kariuki v Attorney General [2014] eKLR held as follows:'it bears repeating that assessment of quantum of damages is a matter for the discretion of the trial judge, which must be exercised judicially and with regard to the general conditions prevailing in the country and to prior relevant decisions'

83. The Court went on further to state that:'On the purpose of awards of damages, the Supreme Court of Uganda in Cuossens v Attorney General, (1999)1 EA 40, noted that the object of an award of damages is to give an injured party compensation for the damage, loss or injury that he has suffered and that the general rule regarding the measure of damages is that the injured party should be awarded a sum of money as would put him in the same position as he would have been if he had not sustained the injury. Where the injury in question is non-pecuniary loss, assessment of damages does not entail arithmetical calculation because money is not being awarded as a replacement for other money; rather it is being awarded as a substitute for that which is generally more important than money, and that is the best that a court can do in the circumstances.'

84. Accordingly, one of the factors that should be considered while making an award of general damages, as seen in the case of Zipporah Seroney & 5 others v Attorney General [2020] eKLR is:'124. Taking into account the cited principles, and considering that the award of general damages is not a mathematical exercise, the best guide is the awards previously made to persons whose constitutional rights were violated in circumstances similar to that of the deceased. This is the only way of determining a just and reasonable compensation considering that the parties did not make any proposals in their submissions on what they think should be the appropriate damages in this case.'

85. Duly guided I have considered the following decisions which dealt with the award of general damages over a similar issue:i.Rukia Idris Barri v Mada Hotels Ltd [2013] eKLR awarded general damages of KShs 300,000/-ii.N W R & another v Green Sports Africa Ltd & 4 others [2017] eKLR awarded general damages of KShs 750,000/-.iii.Shiverenje Simani v Star Newspaper & another [2021] eKLR awarded 250,000/-

86. The petitioner’s major complaint is that her consent was never sought prior to the publication in print media. Otherwise, the publication was not defamatory, and there is no proof that the respondents made any monetary gain from the publication as alleged. I find a sum of Kshs 250,000/= to suffice.

87. As for the claim of exemplary and aggravated damages, I am inclined to be in agreement with the opinion in the case ofMichael Rubia v Attorney-General [2020] eKLR where it was observed that:'168. In the case of Gitobu Imanyara & 2 others v Attorney General [2013] eKLR Lenaola, J (as he then was) discussed the issue of award of exemplary damages and held that:-'54. Regarding the prayer for exemplary damages by each Petitioner, in the case of Obongo vs Kisumu Municipal Council (1971) EA 91, the Court of Appeal referred to the English case of Rookes vs Barnard & Others (1964) AC 1129 where it was held that exemplary damages in tort may be awarded in two classes of cases i.ei.Where there is oppressive arbitrary or unconstitutional actions by the servants of the Government; andii)Where the Defendant’s conduct was calculated to procure him some benefit, not necessarily financial, at the expense of the Plaintiff'

88. The Court went on to determine as follows:'170. I need not cite any other authority to show that the general trend in this jurisdiction is to avoid award of exemplary or punitive damages in public law claims. This principle is grounded on two reasons namely that the State has improved in its respect of human rights and that the taxpayer should not be burdened with heavy awards in claims touching on the public purse. I therefore decline to award the estate of the deceased exemplary or aggravated damages. In my view, general damages and special damages shall suffice to right the wrongs suffered by the deceased.'I will therefore not grant any exemplary damages as I have not been convinced of any ground to make me grant the same.

89. On the issue of costs, Rule 26 (1) of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, provides that the award of the costs is at the discretion of the Court. Sub Rule (2) provides that in exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms. The petitioner’s claim having only partially succeeded she will be entitled to half of the costs. The upshot is that the petition partially succeeds and the following declarations are made.i.The petitioner’s fundamental rights and freedoms under Article 28 of theConstitution have been violated by the respondents.ii.The petitioner’s fundamental rights and freedoms under Article 31(d) of theConstitution have been violated by the respondents.iii.The petitioner’s fundamental rights and freedoms under Article 29(d) of theConstitution of Kenya have not been violated by the respondents.iv.General damages of Kshs 250,000/= are awarded to the petitioner against the respondents, jointly and severally.v.The claim for exemplary and aggravated damages is dismissed.vi.The claim for special damages is dismissed.vii.The claim against the third party is dismissed with costs.viii.The petitioner is awarded half costs to be paid by the respondents.Orders accordingly.

DATED AND SIGNED THIS 11TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. Ong’udiJudge of the High CourtDELIVERED AND SIGNED THIS 13TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.Mugure ThandeJudge of the High CourtPage 12 of 12