David Gicheru v Gicheha Farms Limited & another [2020] KEELRC 1833 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Invasion of privacy through unconsented commercial use of the Petitioner's image
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
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.
Slavery, servitude and exploitation for private gain under Article 30
The unremunerated commercial exploitation of the Petitioner's image amounted to exploitation for private gain akin to slavery and servitude contrary to Article 30
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.
Unfair termination under Sections 41 and 45 of the Employment Act
The summary dismissal was unfair and unjustified as there was no valid reason related to conduct, capacity or operational requirements
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.
Legal principles established
#- 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
#- 1.Declaration that the Petitioner's right to privacy and dignity were infringed by the photographing and publication of his image
- 2.Damages of Kshs. 1,500,000 for infringement of privacy and dignity
- 3.One month salary in lieu of notice of Kshs. 11,600.47
- 4.Twelve months' compensation for unfair and unlawful termination of Kshs. 139,209.64
- 5.Total award of Kshs. 1,650,806.11 subject to statutory deductions
- 6.Respondents to pay costs of the Petition plus interest at court rates from the date of judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.