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ELRCPartially AllowedPetition 103 of 2018· [2020] KEELRC 1833 (KLR)

David Gicheru v Gicheha Farms Limited & another [2020] KEELRC 1833 (KLR)

Employment and Labour Relations Court of Kenya
21 January 2020
3,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a farm worker KShs 1.65 million because his employer used his photo in marketing without consent, then fired him for suing.

What this practically means

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Executive summary

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The Petitioner, formerly a security guard and later plumber/general maintenance worker at Gicheha Farms Limited (a sister company of Brookside Dairies Limited), petitioned the Employment and Labour Relations Court alleging that the Respondents photographed him without consent and published his image on marketing calendars and digital media across Kenya, Uganda and Tanzania without compensation; that his low salary constituted exploitation amounting to slavery and servitude under Article 30; and that he was summarily dismissed on 2nd July 2018 for refusing to drop his legal claim over the image use. The Respondents contended the Petitioner consented to the photography, was paid an ex-gratia sum of Kshs. 101,050 and full terminal dues, and that the dispute was contractual in nature. The court found no evidence of consent for the 2018 calendar publication, holding that the consent agreement relied on was dated May 2018, and found no payment for the use of his photo, which it held amounted to exploitation akin to slavery and servitude under Article 30 and infringed his privacy and dignity under Articles 31 and 28. It further held the dismissal unfair and unjustified under Section 45(2) of the Employment Act as it was for pursuing a legal claim. The court awarded Kshs. 1,500,000 for the privacy and dignity infringement, one month's notice pay of Kshs. 11,600.47, twelve months' compensation of Kshs. 139,209.64 for unfair termination, totalling Kshs. 1,650,806.11 subject to statutory deductions, with costs and interest at court rates.

Key legal issues

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01

Invasion of privacy through unconsented commercial use of the Petitioner's image

Holding

The Petitioner's privacy under Article 31 was infringed because there was no evidence he consented to the 2018 calendar publication and no evidence he was paid for it

Reasoning

The court compared the date of the consent agreement relied on by the Respondents (May 2018) with the 2018 calendar publication and found the agreement could not cover it. Relying on Anne Njoki Kumena v KTDA Agency Limited, it held that use of a person's attribute for commercial gain without consent violates Article 31 and Article 28, entitling the Petitioner to damages.

p. 6
02

Slavery, servitude and exploitation for private gain under Article 30

Holding

The unremunerated commercial exploitation of the Petitioner's image amounted to exploitation for private gain akin to slavery and servitude contrary to Article 30

Reasoning

The court found no indication the Petitioner was paid for the use of his photo on the calendar. It reasoned that using his image without payment subjected him to exploitation for private gain, which the court characterised as akin to slavery and servitude under Article 30, which prohibits holding a person in slavery or servitude and forced labour.

p. 6
03

Unfair termination under Sections 41 and 45 of the Employment Act

Holding

The summary dismissal was unfair and unjustified as there was no valid reason related to conduct, capacity or operational requirements

Reasoning

The court found the Petitioner was dismissed for refusing to drop a legal claim against the Respondents, which was his lawful right. Applying Section 45(2), the employer failed to prove a valid and fair reason related to conduct, capacity, compatibility or operational requirements, nor a fair procedure, rendering the termination unfair and unjustified.

p. 6

Legal principles established

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  • Use of an employee's image for commercial gain without consent or compensation infringes the right to privacy and dignity under Articles 31 and 28 of the Constitution
  • Subjecting an employee to unpaid commercial exploitation of his image is exploitation for private gain akin to slavery and servitude contrary to Article 30
  • Terminating an employee for pursuing a legal claim against the employer is not a valid reason for termination under Section 45(2) of the Employment Act

Court orders

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  1. 1.Declaration that the Petitioner's right to privacy and dignity were infringed by the photographing and publication of his image
  2. 2.Damages of Kshs. 1,500,000 for infringement of privacy and dignity
  3. 3.One month salary in lieu of notice of Kshs. 11,600.47
  4. 4.Twelve months' compensation for unfair and unlawful termination of Kshs. 139,209.64
  5. 5.Total award of Kshs. 1,650,806.11 subject to statutory deductions
  6. 6.Respondents to pay costs of the Petition plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 28, 30, 31, 40, 41, 159(2)(d)
  • Employment ActSections 3, 41, 45(2)
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court (Procedure) RulesRule 7(1)
  • Labour Institutions Actminimum rates of remuneration
  • European Convention on Human RightsArticle 4

Cases cited (6)

  • Prof. Daniel N. Mugendi v Kenyatta University and 3 others
    Civil Appeal No. 6 of 2012
  • United States International University (USIU) v The Attorney General & Others
    Petition No. 170 of 2012
  • Prof. Moni Wekesa v Mount Kenya University
    [2018] eKLR
  • Liz Ayan v Leisure Lodge Limited
    [2018] eKLR
  • Shankar Saklani v DHL Global Forwarding (K) Limited
    [2012] eKLR
  • Ann Njoki Kumena v KTDA Agency Ltd
    [2019] eKLR
Jurisdiction invoked
Section 3 of the Employment and Labour Relations Court Act, 2011 and Rule 7(1) of the Employment and Labour Relations Court (Procedure) Rules; Articles 22, 28, 30, 31 and 41 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Gicheru v Gicheha Farms Limited & another [2020] KEELRC 1833 (KLR)", Case Analysis (2020). Petition 103 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1833/eng@2020-01-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.