https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12308

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E438 OF 2025** **IN THE MATTER OF: ARTICLES 10, 19, 21, 22, 23, 28, 31, 40, OF THE CONSTITUTION OF KENΥA, 2010** **IN THE MATTER OF: THE VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOMS** **IN THE MATTER OF: THE UNAUTHORIZED USE OF THE PETITIONER’S IMAGE BY THE RESPONDENT IN IT’S ADVERTISEMENT** **-BETWEEN-** **ALFRED MUNYUA WANJAU ……………………………... PETITIONER** **-VERSUS-** **WANANCHI GROUP (KENYA) LTD ……………………... RESPONDENT** **RULING ON THE PRELIMINARY OBJECTION** **introduction** 1. The Petitioner Alfred Munyua Wanjau is a male adult of sound mind residing and working for gain in Nairobi. The Respondent is a Limited Liability Company incorporated in Kenya pursuant to the Companies Act CAP 486 Laws of Kenya, having its principal address in Nairobi within the Republic of Kenya. 2. The Petitioner’s case is that sometime in February 2025, the Respondent Wananchi Group (Kenya) Ltd posted commercial video advertisements on its official Facebook page featuring the Petitioner’s image to promote *Pwagu* on Zuku Swahili Channel 100. The Petitioner avers that he never gave consent to the Respondent to use his image which is protected under ***Articles 28, 31 and 40 of the Constitution***. Furthermore, that the film’s production company, **Kadi Media Limited**, confirmed that it had not sold, leased, or licensed broadcasting rights to the Respondent. It is stated that upon receiving a formal demand letter in June 2024, the Respondent took down the advertisements but refused to compensate the Petitioner for the commercial exploitation of his image. This forms the basis of the Petition before the Court. **The Petition** 1. In his Petition dated 4th July 2025, the Petitioner seeks the following reliefs: 2. ***A Declaration be issued that the Respondent violated the Petitioner’s fundamental rights to human dignity and privacy under Articles 28 and 31 of the Constitution of Kenya, 2010 by publishing the Petitioner’s image on its Facebook page for the purposes of commercial advertisement without the express or implied consent of the Petitioner.*** 3. ***A declaration be issued that the Petitioner’s intellectual property rights, right of publicity and personality rights protected under Article 40 of the Constitution of Kenya, 2010 had been infringed by the Respondent when it decided to publish the Petitioner’s image on its Facebook advertisement for financial gain without seeking authority/consent from the Petitioner.*** 4. ***General Damages for violation of his rights.*** 5. ***Interest on (3) above at Court rates.*** 6. ***The Respondent meets the Costs of this Petition.*** 7. The Petition is further supported by the Petitioner’s Supporting Affidavit sworn on even date in which he deposes that acting is his primary source of livelihood and asserts that he is an accomplished Kenyan actor having featured in shows such as Crime and Justice, First Grader, Nafsi and *Pwagu*. He avers that he was cast as the lead actor in the show *Pwagu*, by Kadi Media Limited after auditioning in June 2023 under a formal employment contract. 8. The Petitioner deposes that Kadi Media Limited properly registered the copyright for *Pwagu* and obtained Kenya Films and Classification Board (KFCB) approval before premiering it on YouTube on 21st January 2024. 9. It is pleaded that Kadi Media Limited had already successfully sued the Respondent’s parent entity, Wananchi Group Kenya Limited, the Respondent herein, at the Copyright Tribunal vide ***COPTC No. E001 of 2024***, where the Tribunal ruled on 19th May 2025, that the Respondent was liable for copyright infringement. 10. The Petitioner swears that the Respondent through Zuku Official published video ads on Facebook featuring the Petitioner’s image as thumbnails to promote programs on Zuku Swahili Channel 100 without his consent or knowledge. Further, that Kadi Media Limited confirmed to the Petitioner that it neither transferred, leased nor licensed broadcast or advertising rights to the Respondent. 11. It is the Petitioner’s case that following a demand letter sent on 12th June 2024, the Respondent took down the Facebook ads but ***refused to compensate the Petitioner for the commercial use of his image***. 12. The Petitioner contends that using his image for financial gain without permission violated his fundamental rights under the Constitution, particularly his right to human dignity under ***Articles 10 & 28*** and right to privacy under ***Article 31*** where the Respondent misappropriated his personal image and affairs without his consent. He also contends that his right to property under ***Article 40*** were infringed where his intellectual property, personality rights and right of publicity were violated for commercial exploitation. 13. In response to the Petition, the Respondent filed a Notice of Preliminary Objection dated 16th January 2026 seeking to have the Petition struck out *in limine* for want of jurisdiction on the following grounds: 14. ***The substratum of the dispute, as discernible from the pleadings and the annexed documents, relates exclusively to alleged infringement of copyright over the film "******Pwagu."*** 15. ***By dint of Section 26(3) of the Copyright Act as read with Part D. Paragraph (b) of the Second Schedule, this dispute falls within the exclusive initial jurisdiction of the Copyright Tribunal, being a dispute concerning infringement of copyright. This Court, sitting as a Constitutional Court, lacks the specialized jurisdiction to entertain the matter at first instance*** 16. ***Consequently, the Petition, though artfully framed as a constitutional matter, is in substance a civil claim for copyright infringement disguised as a constitutional petition. It therefore fails to meet the threshold for a constitutional petition as established in Anarita Karımi Njeru v Republic [1979] eKLR and reaffirmed in subsequent jurisprudence, as it discloses no genuine and distinct constitutional questions outside the purview of the statutory copyright regime.*** 17. The second point of law raised in the Notice of Preliminary Objections is that the Petitioner lacks the requisite *locus standi* to institute and sustain the instant suit for the reasons that: - 18. ***The Petitioner’s cause of action is predicated on copyright and intellectual property rights in the film “Pwagu*”.** 19. ***Vide a formal Assignment Agreement, the Petitioner expressly and irrevocably assigned all his copyright and related intellectual property rights in the said film to KADI MEDIA LTD.*** 20. ***Having divested himself of all proprietary interests, the Petitioner retains no legal right or sufficient interest in the subject matter to institute or maintain these proceedings. He is a stranger to the rights he seeks to enforce*** 21. ***Further and in the alternative, the assigned rights have already been actively litigated by the lawful assignee, KADI MEDIA LTD, against the Respondent before the competent forum (the Copyright Tribunal) and appropriate remedies awarded.*** 22. ***That Allowing this Petition would sanction impermissible double jeopardy and multiple suits over the same subject matter against the same party, which the law abhors.*** 23. The third point of law is that the ***Petition constitutes a blatant abuse of the judicial process***, engineered to circumvent the statutory dispute resolution mechanism established under the Copyright Act and to engage in forum shopping. That the attempt to re-litigate, issues that are statutorily reserved for the Copyright Tribunal or that have already been pursued by the rightful owner of the copyright under a constitutional guise renders the Petition fatally defective, vexatious and an obstruction to the fair administration of justice. 24. The parties took directions to canvass the Preliminary Objection through written submissions. **Submissions** 1. The Petitioner’s submissions are dated **28th May 2026**. His counsel submitted on the threshold of constitutional cases, the issue of *locus standi* and the court’s jurisdiction. Counsel for the Petitioner contends that the Respondent’s Preliminary Objection dated 16th January 2026 is an attempt to derail the petition and should be dismissed with costs. 2. The Petitioner argues through his counsel that this petition is about the unauthorized commercial exploitation of his personal image rights, not copyright infringement over the film *Pwagu*. That under ***Articles 22, 23 and 165 (3) (d) (i) of the Constitution***, only the High Court not the Copyright Tribunal, has jurisdiction to determine constitutional violations and grant constitutional remedies. The cases of ***Francis Nzioki Kavuu vs. Kenya Copyright Board and 2 Others (2021) KEHC 8667 (KLR)*** and ***RH Devani Company Ltd v KPLC (2023) KECH 1922 (KLR)*** are cited in support. The Petitioner also refutes the claim of duplicate litigation, clarifying that he has no pending suit against the Respondent before the Copyright Tribunal. 3. On the issue of *locus standi*, it is submitted that the extracted advert thumbnail featured only the Petitioner’s likeness and because image and personality rights are inherently personal, he alone can grant consent for their commercial use or sue for their violation. Counsel submits that engaging with Kadi Media Ltd to act in *Pwagu* did not assign the Petitioner’s personal image rights to third parties, nor can an employer transfer an individual’s personal image rights without express consent. Counsel cites the case of ***Kamande v Nation Media Group (2022) KEHC 16017 (KLR)*** in support. 4. It is submitted that the Petition meets the threshold for constitutional suits as established in the ***Anarita Karimi Njeru*** case because it has sufficient particulars having set out the facts, legal foundations and specific constitutional violations. Counsel cites the case of ***Munga v Tinga & 3 Others (2023) KEELC 248 (KLR***) where the court is said to have dismissed a preliminary objection because the issues being raised concerning the Petition meeting the threshold were issues of fact which could be scrutinized by the court during the main suit. 5. it is submitted that the same principles applied here because the issue whether a constitutional petition meets the threshold requires an evaluation of evidence during a full hearing and it cannot be decided at a preliminary stage as a pure point of law. 6. The Petitioner urges this Court to dismiss the Preliminary Objection with costs, confirm its jurisdiction and proceed to hear the main petition on its merits. 7. The Respondent filed its submissions dated **14th May 2026** in which Counsel raised the following issues for determination: 8. ***Whether the Preliminary Objection satisfies the ‘Mukisa Biscuit test’;*** 9. ***Whether this Court has jurisdiction to entertain a copyright dispute in the first instance; and*** 10. ***Whether the Petitioner possesses the requisite locus standi to maintain the petition*.** 11. Counsel for the Respondent submitted that its Preliminary Objection satisfies the landmark ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696*** standard because it is strictly based on uncontested, pure points of law namely, the court’s jurisdiction and legal standing of the Petitioner which require no factual determination or judicial discretion. 12. On the second issue, Counsel submits that under ***Section 26 (3) of the Copyright Act*** read with the ***Second Schedule,*** the Copyright Tribunal has exclusive initial jurisdiction over disputes involving copyright infringement. Counsel also cites ***Speaker of National Assembly v. Njenga Karume (2008)1 KLR 425,*** and argues that statutory procedures must be followed strictly before escalating matters to court. That in this case, the Petitioner improperly bypassed the specialized tribunal. The case of ***Geoffrey Muthinja Kabiru & 2 Others Vs Samuel Munga Henry & 1756 Others [2015] eKLR*** was cited in support. 13. Citing ***Anarita Karimi Njeru***, Counsel for the Respondent argues that the Petition is a routine civil or statutory copyright claim disguised as a constitutional matter without demonstrating any distinct constitutional violation outside the copyright regime. 14. It is also submitted that the Petitioner executed a formal Assignment Agreement transferring all copyright and intellectual property rights in the film *Pwagu* to Kadi Media Limited and that having divested all proprietary interest, he has no legal standing. The case of ***Law Society of Kenya vs. Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000*** is cited in support. 15. Counsel submits further that the assignee **Kadi Media Limited** has already litigated these rights before the Copyright Tribunal and therefore allowing this petition permits impermissible double litigation over the same subject matter, making the Petition frivolous, vexatious and an abuse of court process. The Respondent prays that the Court upholds the Preliminary Objection and strikes out the entire Petition with costs. **Analysis and Determination** 1. I have considered the petition, alongside the Preliminary objection and the submissions for and against the Preliminary objection. From the material before the Court, the main issue for determination is ***whether the Preliminary Objection is merited***. In determining so, I will consider the following further issues: - 2. ***Whether the Petitioner has locus standi to institute the Petition.*** 3. ***Whether the Court has jurisdiction to hear and determine the Petition on account of alleged breach of the doctrine of exhaustion and constitutional avoidance.*** 4. The foundational principle governing preliminary objections was authoritatively settled in the *locus classicus* **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696,** where Law JA stated: - ***“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”*** 1. Sir Charles Newbold P added his voice in the same case that ***a preliminary objection*** ***should consist of a pure point of law which, if decided one way, disposes of the entire suit or application.*** 2. In the present petition, the Respondent’s objection challenges the jurisdiction of the Court and the Petitioner’s legal standing to seek the remedies in the Petition. It is clear that the questions of jurisdiction and *locus standi* are fundamental legal threshold questions that can be properly established without going into any contested factual evidence. For this reason, I find that the Preliminary Objection properly meets the ***Mukisa Biscuit*** case criteria. 3. On the issue of *locus standi,* the respondent argues that the Petitioner lacks the legal standing to file this Petition because he signed a formal Assignment Agreement transferring all copyright and intellectual property rights in the film to Kadi Media Ltd. That the petitioner having fully divested himself of these rights, he holds no personal legal interest in the matter. Furthermore, that Kadi Media Ltd has already successfully litigated these same rights at the Copyright Tribunal, making this suit an attempt at impermissible double litigation. 4. Counsel for the Petitioner on the other hand argues that the advert thumbnail featured only the Petitioner’s likeness and since image and personality rights are personal, only he, can consent to their use or sue for violation. He adds that engaging Kadi Media Ltd for *Pwagu* did not transfer his image rights, which cannot be assigned by an employer without express consent. 5. From these rival arguments, I hold the view that the Respondent’s arguments are untenable and are legally misconceived. This is because there is a clear distinction between Copyright in an Audio-Visual Work such as that in the *Pwagu* show and an individual’s right to image or personality rights. 6. While copyright safeguards creative expression embodied in a tangible form, such as the show *Pwagu*, whose ownership rests with its producer Kadi Media Limited, image rights advanced by the Petitioner relate to an individual’s personal attributes such as their name, face, likeness, voice or persona and protects them from unauthorized commercial exploitation. 7. Further, an actor such as the Petitioner herein who contracts to perform in a film grants the producer the right to use their performance within that film. That contract does not, as a matter of law, strip the actor of their inherent personality rights or extend to granting third parties free rein to utilize their face or image or other personal features for external commercial advertisements without separate, explicit consent. 8. Taking a cursory look at the facts of this petition, it is clear that it falls within the threshold of a claim for unlawful commercial use of image as established by Mativo J. *(as he then was)* in **Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others (Constitutional Petition 410 of 2016) [2017] KEHC 9230 (KLR) (Constitutional and Human Rights) (21 September 2017) (Judgment)** at paragraph 32 thus: - ***“32. From the above leading decisions on the subject, the key elements of a Claim for unlawful use of Name or image which a petitioner must establish to succeed in a case of this nature are: -*** ***a. 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.*** ***b. 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.*** ***c. No Consent: The plaintiff must establish that he or she did not give permission for the offending use.*** 1. The Facebook thumbnail in this case displayed the Petitioner’s face, which was uncontroverted by the Respondent. The right to one’s image is a personal, non‑transferable right grounded in human dignity under **Article 28** and privacy under **Article 31 of the Constitution**. Kadi Media Limited therefore could not assign the Petitioner’s identity to the Respondent because this remains personal and is constitutionally protected. 2. Consequently, the fact that Kadi Media Limited litigated its independent copyright claim before the Copyright Tribunal in ***COPTC No. E001 of 2024***, that claim is legally distinct from the Petitioner seeking enforcement of his personal image rights. There is no double jeopardy. For this reason, I find that the Petitioner possesses the requisite *locus standi* to institute and sustain legal proceedings in his own name. 3. On the second question of **the Court lacking jurisdiction** the Respondent strongly contends that the petition is a statutory copyright dispute over the film ‘*Pwagu*,’ rather than a genuine constitutional matter. That under ***Section 26(3) of the Copyright Act***, the Copyright Tribunal holds exclusive initial jurisdiction over copyright infringement claims. 4. Consequently, that this Court lacks the specialized jurisdiction to hear the matter at first instance, as the Petitioner has disguised a civil statutory claim as a constitutional petition. 5. The Petitioner on his part argues that the petition herein concerns unauthorized use of his image rights, not copyright over ‘*Pwagu’*. He maintains that under ***Articles 22, 23 and 165(3)(d)(i) of the Constitution,*** only the High Court and not the Copyright Tribunal can decide constitutional violations. He cites **Francis Nzioki Kavuu v Kenya Copyright Board (2021) and RH Devani Co. Ltd v KPLC (2023)** and clarifies that he has no pending suit before the Tribunal. 6. It is trite that jurisdiction flows from either the Constitution or statute or both. (See the Supreme Court’s decision in **Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011; [2012] eKLR**) where it was held 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. This Court’s jurisdiction is captured under **Article 165 of the Constitution** as follows: - ***3. Subject to clause (5), the High Court shall have—*** ***(a)unlimited original jurisdiction in criminal and civil matters;*** ***(b)jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.*** 1. Thus, the High Court has jurisdiction to determine questions of breach or threats of fundamental freedoms, such as what the Petitioner herein is claiming. Further. **Articles 22** states that: ***22. Enforcement of Bill of Rights*** 1. ***Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.*** 2. **Article 23** states that: ***23. Authority of courts to uphold and enforce the Bill of Rights*** 1. ***The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.*** 2. ***Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.*** 3. Taking consideration of the Petitioner’s main grievance and the provisions of the above referenced laws, I note that, while this Court has jurisdiction to hear and determine constitutional violations under **Articles 22, 23 and 165 of the Constitution**, a petitioner alleging infringement of image rights is not barred from first pursuing redress through administrative or statutory mechanisms under the principle and doctrine of exhaustion and constitutional avoidance. 4. This principle of exhaustion of remedies was affirmed in **Geoffrey Muthiga Kabiru & 2 others v 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 which commands Courts to encourage alternative means of dispute resolution.”*** (See also**Speaker of the National Assembly v Karume [1992] KLR 21**). 1. On the other hand, the Doctrine of Avoidance means that a court will not determine a constitutional question if there is another clear and adequate route to resolve the dispute. The doctrine, just as the exhaustion of remedies principle, preserves the Constitution for real constitutional controversies. 2. 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)**, the Supreme Court stated as follows: ***“[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?a.relief by way of damages, injunctions, accounts or otherwise that is available in any corresponding proceedings in respect of infringement of their proprietary rights;(b)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. From the above jurisprudence, it is discernible that litigants must first utilize available statutory remedies before invoking constitutional jurisdiction. There exist legal and statutory mechanisms which offer alternative dispute resolution avenues to address misuse of personal image rights and the High will only intervene where such remedies prove inadequate, unavailable, or ineffective for constitutional enforcement. (See the decision of the 5- High Court Judge Bench at Mombasa in **William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR**). 2. Ultimately, under the doctrine of exhaustion and constitutional avoidance, while the High Court remains the paramount guardian of constitutional rights, petitioners must demonstrate that they have exhausted or properly utilized other statutory channels before seeking constitutional relief. In other words, the High Court is the final safeguard but the petitioner must first explore statutory and administrative remedies. 3. Examining the Petitioner’s grievance and the facts of this case, the petitioner decries infringement of his right to dignity, privacy and property. Particularly, ***the unauthorized use of his image to advertise the “Pwagu*** show alludes to the rights under **Article 31** of the Constitution which provides: - ***31. Privacy*** ***Every person has the right to privacy, which includes the right not to have—*** 1. ***their person, home or property searched;*** 2. ***their possessions seized;*** 3. ***information relating to their family or private affairs unnecessarily required or revealed; or*** 4. ***the privacy of their communications infringed*.** 5. The Petitioner asserts that the case is not about copyright over *Pwagu*, but rather ***the unauthorized commercial exploitation of his personal image.*** 6. The applicable law that gives effect to **Article 31** and addresses such violations is the **Data Protection Act, No. 24 of 2019,** which establishes the Office of the Data Protection Commissioner. 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. 7. **Section 2** of the Act 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. This means that, a person’s photograph or image depicted in a picture which makes them identifiable is categorized as personal data. **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** empowers the office of the Data Commissioner to investigate, facilitate dispute resolution and to punish for breaches of data protection. The relevant provisions state: - ***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 provide for enforcement notices and penalty notices for failure to comply with the provisions of the Act. It follows then that, this Statute provides a formidable mechanism for addressing image rights which significantly bolsters the position of this Court on exhaustion of remedies. 2. Consequently, thefact that the Petitioner claims constitutional violations does not eliminate the need to first exhaust resolution under the Data Protection Act. Simply framing an image right claim as a constitutional violation does not automatically grant this Court immediate jurisdiction if a specialized body or mechanism exists and the Petitioner fails to prove an exception to the exhaustion doctrine. 3. Ultimately, it is my finding that the Petitioner cannot bypass primary statutory dispute resolution mechanisms simply by pleading Article 31 rights. I anchor this finding on the High Court’s decision 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),** where Hon. 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. The above position is supported by the Supreme Court decision in the above cited case of **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (supra).** 2. Statutory mechanisms provide specialised procedures and expertise that ensure efficient dispute resolution. Since the Petitioner neither filed a complaint with the Data Protection Commissioner first nor demonstrated any exception to the doctrine of exhaustion, this Court lacks initial jurisdiction to entertain the petition and this declining of jurisdiction cannot be equated to denial of or limiting access to justice because the alternative remedy is effective and capable of resolving the dispute. Furthermore, Article 159 (2) (c) of the Constitutions is clear that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted unless they contravene the Bill of Rights or are repugnant to justice and morality or results in outcomes that are repugnant to justice and morality or is inconsistent with the Consistent with the Constitution or any written law. 3. The upshot of this is that, I find merit in the Preliminary Objection dated 16th January 2026 and hereby uphold it, for failure by the Petitioner to exhaust the available statutory resolution mechanisms. 4. Accordingly, the Petition dated 4th July, 2025 is hereby struck out to allow statutory dispute resolution mechanisms to take their course. 5. Each party shall bear its own costs. 6. This file is closed. 7. It is so ordered. **Dated, Signed and Delivered virtually at Nairobi this 3rd Day of August, 2026** **R.E. ABURILI** **JUDGE**