Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR In the cited case, the Plaintiff stated she did not give consent to use of her image. The Respondent on the other hand deposed they hired a designer who did not appear in Court, who used the Plaintiff’s image with her consent as she was his girlfriend. The Plaintiff did not controvert this fact and the claim for infringement of privacy failed. In the instant case, the Plaintiff testified she did not know Ojok Photographer and never met him and therefore did not give consent. Secondly, admittedly as a known artist, she is taken photos everywhere every time she would not know when and where and by whom, her photograph was taken. Thirdly, she was alerted that her image was on the Defendant’s page in all social media platforms. Fourthly, the Defendant applied and was granted leave to join 3rd Party, Ojok Photographer to the proceedings. Despite service, he did not enter appearance, attend Court or file any pleadings. There is no evidence from the 3rd Party that he is owner of copy right or he contacted/got consent from the Plaintiff to use her image. There was no Consent. The Defendants are liable for unlawful use of Plaintiff’s image without her consent. On quantum, the Plaintiff sought the Court to assess damages for infringement of the Plaintiff’s legitimate expectation of the protection of her constitutional right to privacy. The Defendant referred to the case of Alternative Media Limted vs Safaricom Limited [2005]eKLR supra; the Court noted that the party failed to give the Court expected and basis of the claim for damages and therefore granted nominal damages. In the instant case, in the Plaint the Plaintiff left to the Court to assess damages, without any guidance as to the range of fees for specific services offered by Artist(s) that are usually in Artists Rate Cards as the basis for negotiation. This Court considers that the Plaintiff is a singer, songwriter and rapper and has previously endorsed campaigns and brands for different corporate entities. The Plaintiff has identity as an artist and her image was used in advertising purposes to support the Defendant’s products services and business. On the other hand, the Defendant is a multinational Company resident in Kenya. The Campaign/advertisement on all social media platforms for 2 weeks attracted attention, information of its business and possibly new and added clientele. In light of these circumstances, nominal damages of Ksh 500,000/- is sufficient compensation for breach of constitutional right to privacy to be paid by Defendants to Plaintiff. The Plaintiff’s claim for general, aggravated and exemplary damages is not granted because the Defendant mitigated damage, loss or injury to the Plaintiff and pulled down the offending use of Plaintiff’s image after the Plaintiff brought the issue of use without her consent to their attention vide letter of 22nd July 2016. Secondly, these circumstances do not meet the threshold as enunciated in the case of Bank of Baroda (Ky) Ltd vs Timwood Products Ltd Civil Appeal 132 of 2001 where it was held; Punitive or exemplary damages would be granted where; a) Where there is oppressive, arbitrary or unconstitutional action by servants of the Government; b) Where the Defendant’s action was calculated to procure him some benefit, not necessarily financial at the expense of the Plaintiff DISPOSITION 1. Judgment is entered for the Plaintiff against the Defendants jointly and severally of Ksh 500,000/- nominal damages for infringement of Plaintiff’s right to privacy without her consent. 2. The Plaintiff’s claim under Copyright Act is dismissed. http://www.kenyalaw.org - Page 13/14