Newton Mathenge v Technical and Vocational Educational and Training Authority & 1 other

b. A declaration that the Petitioner's intellectual property rights, right of publicity and personality rights were infringed when the Respondents decided to publish the Petitioner's image to advertise and market the 1st Respondent's journal for financial gain without seeking authority/consent from the Petitioner. c. An order of permanent injunction restraining the 2nd Respondent from publishing and/ or using the Petitioner's image and likeness in any way in its newspaper publications, advertisements or promotions in any way without the Petitioner's consent and compelling the respondent to stop any further publications featuring the Petitioner's image and likeness on their newspaper brands. d. An order that the Respondents be compelled to compensate the Petitioner for damages out of misappropriation of the Petitioner's intellectual property rights, right of publicity and personality rights arising from the publication of the Petitioner's photograph without his express authority and the explanation of the Petitioner by the Respondent for commercial gain. e. General damages, punitive and aggravated damages against the Respondents for publishing the Petitioner's image severally without his consent for commercial gain and for failing to show remorse even after demand was made such damages be in a sum that would be felt by the Respondents so that the Respondents will not in future behave in a similar manner. f. Costs of the Petition. Petitioner’s case 4. The Petitioner states that he is a student at Nairobi Technical Training College. He depones that on 30th September 2022, he received a congratulatory call from his friend one, John Njau informing him that his image was on the 2nd Respondent’s newspaper. He states that his friend proceeded to even ask for financial assistance, being that he had earned from this. 5. The Petitioner depones that this news came as a shock to him as he had not consented to his photograph being taken neither was he aware that his photograph had been used. After procuring a copy of the newspaper, he ascertained that it was his image and it was used to advertise the 1st Respondent’s journal known as TVET Journal. He postulates that the photograph must have been taken while he is at the college premises. 6. He depones that the 2nd Respondent had equally utilized his image on its website for commercial gain on three other occasions being 22nd November 2020, 24th April 2021 and 26th November 2021. 7. He maintains that he never authorized the Respondents to utilize his image and neither did they even seek his permission prior to its use. As such, he protests the Respondents multiple use of his image for commercial gain. 8. He avers that the 1st Respondent at the time of publishing his image had 2286 centers and boasted that it had 15 million clients both locally and globally. Considering this, he postulates that his image must have attracted a lot of applicants to the various centers and boosted their sales, in turn profiting them tremendously. 9. He depones that a demand letter dated 15th March 2023 from his advocates to the Respondents seeking cease of use of his image was futile. He informs that the 1st Respondent denied use of his image while the 2nd Respondent did not respond. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 2

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10. The Petitioner in view of the foregoing, contends that the Respondents’ actions have caused him emotional and psychological torture as he is ridiculed by his peers for allowing the Respondents to use his image for commercial gain while he suffers financially. Considering this, he emphasizes that the Respondents have violated his rights under Articles 28 and 31(a) and (c) of the Constitution. 11. His friend, John Njau corroborates these claims by stating that while reading the 2nd Respondent’s Newspaper on 30th September 2022, he saw the Petitioner’s image printed on a full page, featuring the 1st Respondent’s journal. 12. He avers that he assumed that the Petitioner had been paid well for the advertisement and immediately congratulated him on the same as he asked for financial support. To his surprise, the Petitioner unaware of the matter informed him that he had not authorized such use of his image. 13. He depones that he advised him to get a copy of the newspaper and confirm the same, which he did. He states that majority of their colleagues and friends got wind of the matter and started ridiculing the Petitioner for allowing his image to be used for commercial gain. He states that regrettably the Respondent has refused to apologize for their illicit conduct which has violated the Petitioner’s right to privacy and dignity. 1st Respondent’s Case 14. Opposing the Petition, the 1st Respondent filed a Replying Affidavit sworn by its Director General, Dr. Kipkirui Langat on 2nd October 2023. 15. He depones that the 1st Respondent did not authorize the 2nd Respondent to publish the article that contains the Petitioner’s photograph and neither did the 2nd Respondent notify it of the article. He as well asserts that he does not know the Petitioner neither aware when and where the photograph was taken. He points out that the Petitioner is under a duty to prove the 1st Respondent use of his image for commercial gain as alleged. 16. He depones that the 1st Respondent is established under the Technical and Vocational Education and Training Act, regulates TVET institutions and their functions, hence not responsible nor has control over published images or articles on the TVET sector. 17. In light of this, he argues that the Petition against the 1st Respondent is misconceived and has no basis in law and fact. For this reason, he urges that it be dismissed. 2nd Respondent’s Case 18. The 2nd Respondent in reply filed a Notice of Preliminary Objection dated 15th November 2023 on the basis that: i. This Court lacks jurisdiction to determine this matter as the Petition offends the doctrine of constitutional avoidance having been camoufiaged as raising constitutional issues when the core issues revolve around the tort of passing off and/or misappropriation of personality. ii. It follows that the Petition should be struck out with costs. Petitioner’s Submissions 19. On 5th May 2025, Wachira King’ang’ai and Company Advocates filed submissions in view of the Petition and Preliminary Objection. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 3

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20. On a preliminary note on the objection, Counsel submitted that this Court has jurisdiction under Article 22(1) and 23 of the Constitution to determine a Petition where denial, violation, infringement or threat of a constitutional right is asserted. In this case, Counsel submitted that the Petitioner asserts violation of his rights under Article 28, 29(d), 31 and 40 of the Constitution by the Respondents. 21. Counsel noted that such violations have been addressed previously and damages awarded such as in Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR where the Petitioner was awarded Ksh.1,500,000 for unauthorized use of his image. On this basis, Counsel submitted that this Petition is properly filed before this Court and that the Preliminary Objection lacks merit and is an abuse of the Court process. 22. Turning to the Petition, Counsel stated that use of the Petitioner’s image in the newspaper was not denied by the Respondents. Counsel submitted that the newspaper print out constitutes documentary evidence within the public domain hence failure to file a certificate of electronic evidence should be deemed as a procedural technicality. Reliance was placed in Article 159(2)(d) of the Constitution. 23. Counsel submitted that the Respondents’ actions had effectively violated the Petitioner’s right to dignity under Article 28 of the Constitution. This is since they published his image without his consent and knowledge, for commercial gain. Counsel observed that Respondents had to date failed to apologize for use of the image and compensate him. Counsel contended that the Respondents actions subjected the Petitioner to phycological torture which violates Article 29(d) of the Constitution. 24. Reliance was placed in Ahmed Issack Hassan vs. Auditor General [2015]eKLR where it was held that: “ The right to human dignity is the foundation of all other right and together with the right to life, forms the basis for the enjoyment of all other rights ... put differently thereof, if a person enjoys the other rights in the Bill of rights, the right to human dignity will automatically be promoted and protected and it will be violated if the other rights are violated.” 25. Furthermore, Counsel submitted that the Respondents had violated the Petitioner’s right to privacy under Article 31 of the Constitution. Counsel submitted that the Respondents had published his image four times without his consent. To buttress this point reliance was placed in Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others[2017]eKLR where it was held that the right to privacy consists essentially in the right to live one’s life with a minimum interference. 26. Comparable reliance was placed in Angella Wells vs. Atoll Media (PTY) Ltd & Anor, Western Cape High Court Case No. 11961/2006. 27. Further to this, Counsel submitted that the Respondents in unlawfully utilizing his image for commercial gain violated his right under Article 40 of the Constitution in that his image constitutes his property. Counsel argued that the Respondents took the Petitioner’s property and sold it without paying the Petitioner any compensation. On this basis, Counsel argued that the Petitioner is entitled to an order of compensation in both general and punitive damages since he has established his case. 28. Counsel submitted that an award of Ksh.2,500,000 as general damages and Ksh.1,000,000 in punitive damages would suffice. Dependence was placed in Joel Mutuma Kirimi & another v National Hospital Insurance Fund (NHIF) [2020] eKLR where the plaintiff was awarded Ksh.5,000,000 for the defendant’s unauthorized use of his image on their social accounts. 29. Further reliance was placed on Constitutional Petition No. E004 OF 2021, High Court at Nyeri, Hilda Kamande -vsNation Media Group and Mutuku Ndambuki Matingi [Supra]. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 4

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Respondents’ Submissions 30. The Respondents did not file submissions. There were neither in the Court file nor in the Court Online Platform (CTS). Analysis and Determination 31. Having regard to the pleadings, the issues that arise for determination are: i. Whether or not the Petition invokes the doctrine of constitutional avoidance. ii. Whether the Petitioner’s rights under Articles 28, 31 (a) and (c) of the Constitution were violated; and iii. Whether the Petitioner is entitled to the reliefs sought. Whether or not the Petition invokes the doctrine of constitutional avoidance. 32. The 2nd Respondent filed grounds of opposition stating that the Petition offends the principle of constitutional avoidance but did not file submissions to elaborate on the issues. The Petitioner however cited judicial precedents to demonstrate that in circumstances similar to this, this Court has invoked its constitutional jurisdiction to protect infringement of rights and freedoms of Petitioners who approached the Court with related complaints. 33. In my view, even without the benefit of the 2nd Respondents submissions who raised but never filed submissions on the principle of constitutional avoidance, it is my considered view that, the Petition pleads violation rights and fundamental freedoms which are precisely identified and detailed the facts indicating how the violation occurred given. According to the Petitioner, his right to dignity under Article 28, the right to privacy under Article 31 and the right to protection to property-in form of intellectual property rights under Article 40 of the Constitution were violated as a result of the actions complained of. While the Act under section 8 (1) (f) give the Data Commissioner the power to among others ‘receive and investigate any complaint by any person on infringements of rights under this Act’ it should be appreciated that the preambular clause states that the Act is intended to give effect to Article 31 (c ) and (d) hence the Act is limited and may thus be insufficient to deal with the array of other related rights the Petitioner claims were violated. 34. I thus find that the existence of the Data Protection Act does not provide a sufficient remedy hence the Petitioner properly invoked the jurisdiction of the under Article 165 (3) (b) “to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.” Whether the Petitioner’s rights under Articles 28, 31 and 40 of the Constitution were violated. 35. The gravamen of this petition is the alleged commercial exploitation of the Petitioner’s personality rights, specifically, her image by the respondent without her consent. 36. In the case of Jessica Clarice Wanjiru Vs Davinci Aesthetics Reconstruction and 20 others (2017) eKLR, the Court citing the celebrated Canadian Case of Krouse versus Chrysler Canada Ltd identified the key elements that a Party claiming breach of personality rights ought to establish to the satisfaction of the Court as follows: a. Use of a Protected Attribute: The claimant 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 5

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b. For an Exploitative Purpose: The claimant 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 claimant must establish that he or she did not give permission for the offending use. 37. The Petitioner deponed that in the newspaper published by the 2nd Respondent, there was his image in an advertisement in which the 1st Respondent’s had advertised a journal known as TVET Journal. The advertisement ran on 22nd November, 2020, 24th April 2021 and 26th November, 2021 yet he never authorized the Respondents to utilize his image nor did they even seek his permission prior to its use. He contended that the photograph must have been taken while he is at the college premises. 38. The 1st Respondent was categorical that it did not authorize the 2nd Respondent to publish the article that contains the Petitioner’s photograph nor did the 2nd Respondent notify it of the said article. Further that it did not know the Petitioner neither was it aware that the photograph was taken and thus insisted that the Petitioner was under a duty to prove the 1st Respondent had used his image for commercial gain. It maintained that the 1st Respondent is not responsible nor has does it have control over published images or articles on the TVET sector. 39. Section 107 of the Evidence Act Cap 80 squarely lays the burden on a party that asserts existence of a fact. It states: “ Section 107: Burden of Proof 107(1) Whoever desires any court to give judgment as to any legal right or liability dependent to existence of facts which he asserts must prove that those facts exist.” 40. The question thus becomes, did the Petitioner prove that the 2nd Respondent displayed his images as alleged with the authority of the 1st Respondent in view of the 1st Respondent’s denial? 41. It was the responsibility of the Petitioner to provide sufficient evidence of every essential fact he was relying on to succeed in this Petition. One of the essential fact is the proof of publication of his image by the 2nd Respondent (which is not denied) and two, that it was with authority of the 1st Respondent. 42. The Petitioner did not provide direct proof or nexus that in publishing the image, the 2nd Respondent acted on the authority of the 1st Respondent since not even the 2nd Respondent came forward to acknowledge that fact. 43. That leaves the 2nd Respondent. It only filed a preliminary objection and did not file any rebuttal or indicate where the instructions to publish the Petitioner’s image carrying the advertisement had come from. In the absence of this information and given the fact of publication is not controverted, the Court finds that it was the 2nd Respondent either acting alone or with undisclosed persons facilitated the violations in breach of the Petitioner’s personality reports that he complains of in this Petition. 44. The evidence points with exactitude the dates the publication was done and that the publication was in form of advertisement. The Court is satisfied with the proof tendered by the petitioner of the publication of his image by the 2nd Respondent for commercial gain without his consent as no evidence of such consent was tendered as proof before this Court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 6

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45. This publication of the Petitioner’s image without his consent for commercial use was an intrusion to his right to privacy under Article 31 (c) of the Constitution. Further, displaying one’s image for commercial gain without their knowledge, consent and uncaring about their personal feelings or views shows a patronizing attitude that takes another human being merely as a product instead of a rights bearing individual protected by the Constitution. This demonstrates the lack of respect to their dignity in violation of Article 28 which provides that every person’s dignity must be respected and protected. Even when the Petitioner reached out to the 2nd Respondent after discovering what had happened, the 2nd Respondent did not care to even respond to his legitimate concerns, which was a manifestation of the same contemptuous attitude. 46. Having found that the Petitioner’s rights were violated, it is my finding that the Petitioner is entitled to compensation. I have considered the following decisions: a. GSN v Nairobi Hospital & 2 Others (202O) eKLR where Kshs. 2,000,0000 was awarded for breach of right to privacy. b. High Court at Meru, Civil Appeal No. E083 of 2021 Dhabiti Sacco Limited v Sharon Nyaga where Ksh.1,500,000/- was awarded for publication of Petitioner’s picture in the annual calender. 47. The petitioner submitted that an award of Kshs. 2,500,000/- as general damages and a further Kshs. 1,000,000/= should be awarded. The 2nd Respondent did not submit on damages. 48. I am of the considered view that an award of Kenya three hundred thousand shilling (Kshs. 300,000/-) is fair and adequate. 49. Costs of this Petition shall be borne by the 2nd Respondent. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH DAY OF APRIL, 2026. …………………………………… L N MUGAMBI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6541/eng@2026-04-16 7

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