Alfred Kagwi Wambui & 1 other v Eden Park Country Garden Limited

categorically aver that at no point was any discussion or agreement reached regarding the use of the photograph for advertisement or publication purposes. 4. In January 2022, the Petitioners discovered that the Respondent had circulated advertising pamphlets and social media posts promoting its motorcycle credit scheme, prominently featuring their photograph. They had neither participated in nor consented to such promotion. According to the Petitioners, the Respondent superimposed their photograph, originally taken under the pretext of customer appreciation, onto marketing content, thereby creating the false impression that they were endorsers or beneficiaries of the Respondent’s credit scheme. The Petitioners contend that this use of their image was for the Respondent’s commercial benefit, without compensation or permission. 5. The Petitioners assert that the unauthorized publication of their image occasioned them embarrassment, ridicule, and mental anguish. They allege that friends, family, and colleagues who saw the advertisement assumed that the Petitioners had willingly participated or were remunerated, resulting in unwelcome inquiries and mockery. The 2nd Petitioner states that she suffered distress and loss of dignity, perceiving that their private lives had been commercialized without respect for their autonomy. The Petitioners further contend that the Respondent’s actions amounted to the exploitation of their persona for profit, akin to being used as unpaid models or brand ambassadors against their will. 6. In their Petition and supporting affidavit sworn on 5th March 2022, the Petitioners seek, inter alia, i. a declaration that the use of their image and likeness without express consent violates their constitutional rights to human dignity (Article 28) and privacy (Article 31); ii. a declaration that such use for commercial gain constitutes subjecting them to exploitative or forced labour in contravention of Article 30; iii. an order permanently restraining the Respondent from further publishing or using their image in any advertisements, promotions, or publications without consent, and compelling the Respondent to withdraw and expunge existing publications; iv. an award of general damages for distress, humiliation, and affront to their dignity and privacy, including exemplary or aggravated damages, with reference to comparable case awards in the region of Kenya Shillings 2,000,000 and above; and v. costs of the petition and interest on any monetary award. 7. The Respondent opposes the petition. In its Replying Affidavit sworn by its Marketing Manager on 10th April 2022, and in submissions, the Respondent concedes that it used the Petitioners’ photograph in the promotional materials. However, it denies wrongdoing and advances several defences. First, it asserts that the Petitioners consented to the use of the photograph, alleging that the 1st Petitioner signed a “Release Form” authorizing the use of his image for marketing purposes. 8. Second, the Respondent contends that the photograph was taken in a public setting at its branch office and was used generically “to celebrate success stories.” It argues that the Petitioners were aware that the photograph might inspire others and that such use does not constitute a violation of privacy, as the Petitioners voluntarily posed for the photo. The Respondent further submits that any interference with privacy or dignity was minimal, noting that the pamphlet was circulated to a limited audience, contained no disparaging content, and merely portrayed the Petitioners as satisfied customers. 9. Third, the Respondent disputes the characterization of its conduct as “forced labour,” arguing that Article 30 pertains to compelling an individual to perform work or service, and cannot extend to the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 2

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use of a photograph in advertising. The Respondent maintains that the Petitioners performed no work at its behest, and therefore Article 30 is inapplicable. 10. On the issue of commercial gain, the Respondent downplays any direct profit from the use of the image, asserting that the pamphlet was informational, routine marketing material, and that the Petitioners have not demonstrated any pecuniary benefit attributable to their photograph. It submits that the advertisement did not harm the Petitioners’ reputation; if anything, it enhanced their profile as model clients. Any subjective discomfort experienced, it contends, does not rise to the level of a constitutional violation. 11. The Court has considered the written submissions of both parties. The facts are largely uncontested except regarding the issue of consent. Notably, the Respondent’s claim of a signed consent or release form is unsupported by documentary evidence, thereby undermining its defence. Analysis and Determination 12. From the pleadings, affidavits and submissions, the Court distills the following key issues for determination: a. Whether the Respondent’s use of the Petitioners’ image and likeness without their express consent violated the Petitioners’ fundamental rights under Articles 28, 30 and 31 of the Constitution. b. Whether the Respondent obtained Commercial Gain from the use of Petitioners’ image c. Whether the Petitioners suffered harm as a result of the Respondent’s actions. d. Whether the Petitioners are entitled to any remedies. Alleged Violation of Constitutional Rights (Articles 28, 30 and 31) (a) Right to Privacy (Article 31) 13. The cornerstone of this petition is the alleged infringement of the Petitioners’ fundamental rights under the Constitution. 14. Article 31 of the Constitution guarantees every person the right to privacy, including the right not to have information relating to their family or private affairs unnecessarily required or revealed. The High Court has consistently recognized that unauthorized publication of an individual’s photograph can implicate the right to privacy. Privacy, in essence, encompasses the right to live one’s life with minimal interference, including control over personal information and images. As Mativo J. observed in Jessicar Clarise Wanjiru v. Davinci Aesthetics & Reconstruction Centre & 2 Others [2017] eKLR, “the right to privacy consists essentially in the right to live one’s life with a minimum of interference. It concerns private family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant or embarrassing facts, unauthorized publication of private photographs, [and] protection from disclosure of information given or received confidentially.” The law zealously guards an individual’s private life and personal data from unjustified intrusion. 15. A person’s likeness or image constitutes a unique personal identifier, and control over it is an integral element of privacy and personal autonomy. The High Court has recognized that “a person’s image constitutes one of the chief attributes of his or her personality… The right to the protection of one’s image… presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof.” In T.O.S v. Maseno University & 3 Others [2016] eKLR, Chemitei J. held that “publication or use of the images of an individual without his consent violates that person’s right to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 3

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privacy. I say so because a person’s life is a restricted realm in which only that individual has the power of determining whether another may enter, and if so, when and for how long and under what conditions.” I fully endorse this reasoning. By determining who may use one’s image and under what conditions, an individual exercises control over their personal sphere; unauthorized use wrests that control away. 16. In the present case, it is uncontested that the Respondent took the Petitioners’ photograph and subsequently published it in advertisements without explicit permission. This conduct prima facie intruded upon the Petitioners’ right to privacy. The photograph was not a mere incidental capture of a public scene; it specifically featured the Petitioners in a manner that identified them and associated them with the Respondent’s product. As the South African High Court observed in Angella Wells v. Atoll Media (PTY) Ltd & Another (Case No. 11961/2006), “the appropriation of a person’s image or likeness for the commercial benefit or advantage of another… constitutes an unjustifiable invasion of the person’s rights, including the person’s dignity and privacy.” The Respondent’s use of the Petitioners’ image in profit-driven material, without consent or justification, constitutes an unjustified invasion of privacy. 17. Once the Petitioners demonstrated that their image was used without consent, the burden shifted to the Respondent to justify the interference. The Respondent alleged that the 1st Petitioner had signed a release form; however, no documentary proof was produced. In contrast, the Petitioners have consistently maintained that no consent was given. In the absence of credible evidence, I find that no consent was obtained. The Respondent’s bare assertion is insufficient to rebut the clear sworn testimony of the Petitioners. Moreover, the Respondent’s cessation of use only after receiving a demand letter reinforces the inference that prior consent was lacking. It follows that the Respondent’s publication of the Petitioners’ photograph was unconsented and unlawful. 18. The Respondent has not advanced any law or public interest justification for its actions. This was not a scenario involving newsworthiness or public safety, where competing rights or Article 24 limitations might be engaged. The use was purely commercial, squarely within the ambit of what Article 31 seeks to protect against - unauthorized publication of private photographs. Accordingly, I find that the Petitioners’ Article 31 right to privacy was violated. 19. This conclusion aligns with Mutuku Ndambuki Matingi v. Rafiki Microfinance Bank Ltd [2021] eKLR, where G.V. Odunga J. held that publication of the petitioner’s image in promotional material without consent constituted prima facie evidence of a violation of privacy. Similarly, the Respondent’s unjustified intrusion into the Petitioners’ private lives through unauthorized use of their image constitutes a breach of Article 31. b. Right to Human Dignity (Article 28) 20. Article 28 guarantees every individual the right to inherent human dignity and the right to have that dignity respected and protected. Human dignity is a foundational value enshrined in our Constitution and is intimately linked with other rights, including privacy. Unauthorized use of one’s image can impact dignity by disregarding the individual’s autonomy and treating them as a mere instrument for gain. 21. There exists a close relationship between privacy and dignity. Infringement of privacy often amounts to an affront to dignity. By infringing the Petitioners’ privacy, the Respondent’s conduct simultaneously implicated their dignity. The Petitioners were not treated as persons with agency over their likeness; rather, they were used as a means to advance the Respondent’s commercial objectives. In Coalition for Reform and Democracy (CORD) & 2 Others v. Republic of Kenya & 10 Others [2015] eKLR, the Court recognized that privacy preserves the “dignity and freedom of the individual.” Accordingly, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 4

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the breach of privacy in a manner that diminishes personal worth constitutes a violation of the right to dignity. 22. The Petitioners testified to feelings of humiliation and being reduced to mere marketing props. The 2nd Petitioner described feeling like a “marketing pawn,” with observers assuming they had monetized their image. This false perception caused them embarrassment and affront. As Odunga J. observed in the Matingi case, “by publishing the Petitioner’s image [while] being advanced a financial facility, the Respondent violated the Petitioner’s right to dignity.” Similarly, the Respondent’s actions in the present case violated the Petitioners’ right to human dignity. The positive portrayal argument is unavailing; the Petitioners were entitled to decide whether to participate in the advertisement. Using their image without consent deprived them of agency over matters intimately tied to their personhood. 23. The Respondent’s argument that the publication portrayed the Petitioners in a positive light does not excuse the violation. The Petitioners were entitled to decide whether or not to appear in the Respondent’s advertisement. Using their image without asking stripped away their agency in a matter intimately concerning their personhood and reputation. I therefore find that the Petitioners’ Article 28 right to dignity was breached by the Respondent’s actions. 24. It bears emphasis that human dignity is not a trivial matter. The Constitution demands that it be respected and protected at all times. Our courts have held that where other rights (such as privacy) are infringed, human dignity is inevitably violated. In this case, the violation of dignity is direct and palpable. Whether the Respondent obtained commercial gain from the use of Petitioners’ image 25. The context of the Respondent’s use was clearly commercial, in the form of marketing pamphlets and social media posts promoting a motorcycle loan product. As held in Jessicar Clarise Wanjiru (supra), a claimant must show that “the defendant used his name, likeness or other personal attribute for commercial or other exploitative purposes.” The Petitioners have demonstrated this element: their image was used to advance the Respondent’s business interests. 26. The Respondent argues that the Petitioners have not proved actual commercial gains (such as increased sales) resulting from the advertisement. However, the law does not require the Petitioners to conduct a market analysis of the advertisement’s impact. It suffices that the Respondent appropriated their image as part of a profit-seeking enterprise. A “sufficient link” exists between the Petitioners’ likeness and the Respondent’s commercial promotion, establishing that the Petitioners’ personalities were used for the Respondent’s gain. Even if the precise monetary benefit is unquantified, the Respondent sought to enhance its business prospects by featuring real people (the Petitioners) presumably as satisfied customers. This is a form of advertising value. In the South African case of Wells v. Atoll Media (supra), the court noted that when a photograph is employed for the benefit of a profit-making enterprise, that use is exploitative and unjustified. I find that principle applicable here. 27. The Respondent’s discontinuation of use following a demand letter implicitly acknowledges the value of the Petitioners’ image and reinforces the exploitative nature of the act. I therefore conclude that the Respondent derived, or intended to derive, commercial benefit from the use of the Petitioners’ image, which aggravates the constitutional wrong. This finding aligns with Mutuku Matingi (supra), confirming that unauthorized exploitation of a person’s image for commercial purposes violates privacy and dignity. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 5

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Whether the Petitioners Suffiered Harm 28. The Petitioners allege ridicule, embarrassment, and psychological distress as a result of the publication. Unlike in certain tort claims, a constitutional violation does not require proof of quantifiable loss; nevertheless, the nature of harm informs the relief. The Petitioners’ evidence is credible, detailing peer and family reactions, intrusive inquiries, and anxiety over the unauthorized dissemination of their image. In Aron Asiiba Matendechele v. Muthokinju Paints & Cement (Petition E361 of 2021), similar psychological torment was considered relevant. Additionally, in FM (Minor) v. Standard Group Ltd [2021] eKLR and N W R & Another v. Green Sports Africa Ltd & 4 Others [2017] eKLR, courts recognized indignity and emotional impact in awarding damages for unauthorized image use. 29. I find that the Petitioners suffered actual harm in the form of psychological distress and loss of dignity, which is compensable under general damages for constitutional violations. Whether the Petitioners are entitled to any remedies 30. The Petitioners seek compensatory damages. The courts have long held that damages constitute an appropriate remedy for vindicating infringed constitutional rights. As Odunga J. observed, “award of compensation is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. The quantum of compensation will, however, depend upon the facts and circumstances of each case.” 31. Considering relevant precedents, Mutuku Ndambuki Matingi v. Rafiki Microfinance Bank Ltd [2021] Eklr, a case closely on point, the High Court awarded Ksh 2,000,000 as general damages to a single petitioner whose image was used without consent by a bank for commercial advertising. The court found violations of dignity and privacy and considered that sum appropriate in 2021. In N W R & Another v. Green Sports Africa Ltd & 4 Others [2017] eKLR, where a minor’s images were used in an advertisement without consent, the court awarded Ksh 750,000 in general damages. The lower quantum may be attributed to the period in which the cause arose, being 2017, when the scope and impact of publication were arguably narrower, and to the circumstance that the subject was a minor, notwithstanding the heightened vulnerability attendant to minors. 32. In Ann Njoki Kumena v. KTDA Agency Ltd [2019] eKLR, the plaintiff’s image was used in a brochure without consent, and the court awarded Ksh 1,500,000 as general damages. This indicates an upward trend as awareness of image rights grows. In Jessicar Clarise Wanjiru v. Davinci Aesthetics & Reconstruction Centre [2017] eKLR, the Court (Mativo J.) discussed the elements of image rights but ultimately dismissed the petition on facts. However, it recognized the principle that the right to privacy (and image) is protectable even absent quantifiable loss. No damages were awarded since the case was not proven, but the analysis suggests that had it been successful, damages would be merited. In CNM v. WMG & Another [2018] eKLR, and Matendechele v. Muthokinju Paints & Cement [2023] (supra), the outcomes varied based on proof. The dismissal of the Matendechele case was predicated on the petitioner’s failure to prove that his identity had been appropriated, the image relied upon being a caricature and the connection thereto not having been sufficiently established. As a result, no damages were granted, illustrating that liability and relief are fact-specific. 33. I am guided by the circumstances of the instant case. In determining the quantum, I consider that the following factors: (i) The Respondent is a corporate entity that used the Petitioners’ image in a calculated marketing strategy. This was not an inadvertent or isolated incident; it was a deliberate campaign. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 6

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(ii) The publication occurred in both print (pamphlets) and digital (social media) formats, increasing the reach and potential impact. (iii) The Petitioners suffered subjective but real emotional harm and affront. (iv) The Respondent did not apologize or offer amends promptly; it only ceased use after being pressed, indicating a lack of remorse until confrontation. (v) The Petitioners had a prior relationship as customer(s) of the Respondent, which arguably should have imposed on the Respondent a higher duty to treat them with respect instead, the Respondent abused that relationship for profit. 34. Balancing these factors and with reference to the case law, I find that an award of Kenya Shillings Two Million (KshS. 2,000,000) per Petitioner, totalling KshS. 4,000,000, is appropriate to vindicate their rights and compensate for the intangible injuries suffered. This amount refiects the seriousness of the infringement without being excessive. 35. Although interest was not specifically pleaded, it is within the Court’s discretion to award it. Accordingly, I direct that interest at court rates shall run on the awarded damages from the date of this judgment until payment in full. Disposition 36. In light of the findings above, the following declarations, orders, and awards are issued;a. A declaration be and is hereby issued that the Respondent’s use of the Petitioners’ image and likeness in its commercial advertisements without the Petitioners’ consent was unlawful and in violation of the Petitioners’ fundamental rights to privacy and human dignity as guaranteed by Articles 31 and 28 of the Constitution of Kenya, 2010; b. The Petitioners’ claim that their right under Article 30 of the Constitution (freedom from forced labour) was violated by the Respondent is not proved, and to that extent, that particular prayer is dismissed; c. A mandatory order be and is hereby issued compelling the Respondent, whether by itself, or through its agents or servants, to immediately desist from publishing or continuing to publish, distributing, or in any way using the Petitioners’ image or likeness in any advertisement, marketing material, promotion, social media post or other publication that had not been subject to the Petitioners’ prior consent; d. A permanent injunction be and is hereby issued restraining the Respondent, whether by itself, or through its agents or servants, from publishing, distributing, or in any way using the Petitioners’ image or likeness in any advertisement, marketing material, promotion, social media post or other publication without the Petitioners’ prior consent; e. The Respondent is ordered to and shall pay General Damages to the Petitioners as compensation for the violation of their constitutional rights being Kenya Shillings Two Million (KShs. 2,000,000.00) each and a total of Kenya Shillings Four Million (KShs. 4,000,000.00) and the same shall be paid within forty-five (45) days of the date of this judgment; f. At the lapse of forty-five (45) days from the date hereof, any unpaid amounts shall attract interest at court rates from the date of this judgment until the date of payment in full; and g. The Respondent shall bear the costs of this Petition. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 7

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Orders Accordingly. File closed accordingly. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 5TH DAY OF DECEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE In the presence of : Counsel for the Petitioner- Mr. Mburu Counsel for the Respondents- No appearance Court Assistant – Ms. Lwambia HCCHRPET. NO. E148 OF 2022 JDT Page 5 | 5 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19215/eng@2025-12-05 8

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