Abinayo v House & Farm Company Limited (Petition E061 of 2024) [2024] KEELRC 2832 (KLR)
The bottom line
#A Kenyan court ordered an employer to pay Kshs. 2.28 million for using a worker's photos in adverts without her consent and unfairly firing her for refusing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition met the precision test in Anarita Karimi Njeru v Republic or was defeated by the doctrine of constitutional avoidance
- 2.Whether the respondent commercially used the petitioner's photographs and videos without her informed and explicit consent, violating her rights to privacy and dignity under Articles 31 and 28
- 3.Whether the commercial use of the petitioner's image without consent or financial benefit violated Article 30 (freedom from slavery, servitude and forced labour)
- 4.Whether the petitioner's right to fair labour practices under Article 41 was breached
- 5.Whether the summary dismissal was fair in procedure and merit under sections 41, 43, 45 and 46 of the Employment Act, 2007
- 6.What remedies, including damages for the rights violations and compensation for unfair termination, should issue
Key legal issues
#Sufficiency of the constitutional petition against the Anarita Karimi Njeru precision test and constitutional avoidance
The petition was properly pleaded with particulars of violations and cited provisions of the rights violated; the doctrine of constitutional avoidance did not apply.
The respondent argued the petition was ambiguous, mixed jurisdictions, and should have been pursued under the Employment Act. The Court held the petition set out well-pleaded particulars of violations and the provisions contravened, and that in the circumstances an ordinary suit could not have served the petitioner's pleaded and established cause of action, since the dispute was in the realm of breach of Articles 31 and 41 of the Constitution.
Violation of privacy and dignity through commercial use of the petitioner's image without consent
The respondent violated Articles 28 and 31 by commercially using the petitioner's photographs and videos without her informed and explicit consent, during employment and after termination.
The respondent used promotional videos and photographs of the petitioner on its Facebook and TikTok accounts with over 11,000 followers for commercial gain, without consent. The belated Photo and Video Consent form was oppressive and the petitioner declined to sign it. The Court found no evidence the respondent obtained consent as defined in the Data Protection Act, 2019, and that the employment role, even if established, did not communicate use of her personal photos and videos.
Forced labour under Article 30
The commercial use of the petitioner's personal data without consent and her dismissal upon objection amounted to forced labour and exploitation.
The Court reasoned that the respondent punished the petitioner by dismissing her for objecting to commercial use of her personal data, then continued using her data unhindered while she gained nothing. Applying the definition in the ILO Forced Labour Convention, 1930 (No. 29) of work exacted under threat of a penalty and not offered voluntarily, the Court found a contravention of Article 30.
Fairness of the summary dismissal
The termination was unfair in procedure and merit; the alleged poor performance was not particularised and no notice or hearing under section 41 was given.
The respondent alleged unsatisfactory performance but did not show particulars as required by section 43, nor want of capacity, compatibility and compliance under section 45. The procedural safeguards of notice and hearing in section 41 were not invoked. The true reason was the petitioner's refusal to sign the oppressive consent form, an unlawful reason under section 46. Compensation of twelve months' gross salary was awarded under section 49 given the aggravating factors.
Unfair labour practices in continued use of the petitioner's images
Continued use of the petitioner's images in sales advertisements after separation, without agreement and with no benefit to her, was an unfair labour practice and an unfair invasion of privacy.
The Court held the respondent needed express permission to continue using the images before and after termination. Continued use also misrepresented to customers that the petitioner remained an employee or sales team member, for the respondent's gain. Implied consent said to arise from the employment contract could not extend to use of personal photos and videos beyond the contract of service.
Legal principles established
#- Commercial use of an employee's photographs, videos and personal identification data requires the worker's informed and explicit consent; the burden of proving consent lies on the data controller or employer.
- A worker's personal data should not be communicated for commercial or marketing purposes without the worker's informed and explicit consent.
- Consent must be express, unequivocal, free, specific and informed, and consent to processing that is not necessary for the performance of a contract is not freely given.
- Terminating an employee for refusing to sign an oppressive consent form for commercial use of her image is an unlawful reason for dismissal under section 46 of the Employment Act and constitutes unfair termination.
- The Employment Act does not expressly protect workers' personal data, a lacuna requiring urgent legislative reform.
Court orders
#- 1.Declaration that the respondent violated the petitioner's rights to privacy and human dignity under Articles 28 and 31 by publishing her image for commercial advertisements without consent
- 2.Declaration that the respondent violated the petitioner's right under Article 30 by publishing her images for their own commercial gain with no personal financial advantage to the petitioner
- 3.Declaration that the petitioner's right to fair labour practices has been breached
- 4.Permanent injunction restraining the respondent from publishing and using the petitioner's images without her consent, and compelling the respondent to stop further advertisements featuring her image and to delete or pull down all posts with her image on its social media pages
- 5.Respondent to pay the petitioner Kshs. 2,000,000.00 for violation of rights
- 6.Respondent to pay the petitioner Kshs. 276,000.00 (less PAYE) for the unfair termination
- 7.Amounts in (5) and (6) to be paid by 01.03.2025 failing interest at court rates from the date of judgment until full payment
- 8.Respondent to pay the petitioner's costs of the petition
- 9.Petitioner to serve the judgment within seven days upon the Attorney General and the Cabinet Secretary for Labour and Social Protection towards legislative reforms on workers' privacy and personal data
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution over employment and labour disputes, with constitutional jurisdiction over Bill of Rights violations pleaded under Articles 28, 30, 31 and 41
Relief refused
#Petitioner's proposed compensation of Kshs. 3,000,000.00 for violation of rights
The Court assessed the award at Kshs. 2,000,000.00 as adequate, considering the submissions including the Kshs. 1,500,000.00 award upheld in Dhabiti Sacco Ltd v Sharon Nyaga
Costs
The respondent to pay the petitioner's costs of the petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The declaration that the respondent violated the petitioner’s fundamental rights to privacy and human dignity under Articles 28 and 31 of the Constitution by publishing the petitioner’s image for purposes of commercial advertisements without her consent.
The order that the respondent to pay the petitioner Kshs. 2,000,000.00 for violation of rights as found herein.
An order that the respondent to pay the petitioner Kshs. 276, 000,00 (less PAYE) for the unfair termination.
A worker’s personal data should not be communicated for commercial or marketing purposes without the worker’s informed and explicit consent.
A data controller or data processor shall bear the burden of proof for establishing a data subject's consent to the processing of their personal data for a specified purpose.
The Court finds that the termination was unfair in procedure and merit and it was upon the claimant raising a well grounded grievance that she would not sign the consent
Issues in the judgment
#Section 37 of the Data Protection Act on commercial use of data is reproduced with text identical to section 32 on conditions for consent, apparently an inadvertent duplication in the judgment.
The judgment refers to a violation of 'fair labour practices contrary to section 41 of the Constitution' although fair labour practices are protected under Article 41, a slip in referring to the provision as a section.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abinayo v House & Farm Company Limited (Petition E061 of 2024) [2024] KEELRC 2832 (KLR)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2832/eng@2024-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.