Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR In cross examination, DW1 stated that the Plaintiff did not give written consent. They vetted to find out if the image was stolen or bought online. They contacted Ojok Photography and confirmed the Plaintiff’s image was his and he ought to be the Plaintiff in this case. The video ran for 30 seconds and there were other images at the same time. DW1 stated that they had a disclaimer; “By submitting your photos or videos, you give Tecno the consent to use your work. Tecno reserves the right to make final decisions.” The Defendant ran the campaign for photographers and received various submissions, PW1’s image was from Ojok photographer and on his Instagram found PW1’s pictures and he stated he was entitled to the photos. The Defendant is of the view the photographer has a copyright. DW1 urged the Court to dismiss the suit. PLAINTIFF’S SUBMISSIONS The Plaintiff in her submissions stated that the Defendant did not pursue their Counterclaim and failed to establish the defamatory aspect of the Facebook post by the Plaintiff as they failed to produce any evidence to prove that the statement was not truthful. The Plaintiff relied in the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017]eKLR, Mativo J, held that; “25. A person’s image constitutes one of the chief attributes of his or her personality, as it reveals the person’s unique characteristics and distinguishes the person from his or her peers. The right to the protection of one’s image is thus one of the essential components of personal development. It mainly presupposes the individual’s right to control the use of that image, including the right to refuse publication thereof. 26. personality rights encompass the exclusive right of an individual to market, control and profit from the commercial use of his/her name. image, likeness and persona. The distinctive characteristics of one’s image, likeness or persona include but are not limited to name, face, signature phrase, paraphernalia or action, costume or personals signature. 28. The tort of misappropriation of personality was first introduced in Canada in the case of Krouse vs Chrysler Canada. The tort can be expressed by stating that every individual has an exclusive right to market, for financial gain, their personality, image and name, and that the law entitles an individual to protect that right, if it is invaded. The tort of misappropriation of personality can be invoked when all of the following four elements are met: a) There is an element of commercial exploitation of a person’s personality. There must be a sufficient link between the individual and the exploiting medium to establish that the plaintiff’s personality was “used” for the defendant’s commercial gain. b) The person is clearly identifiable in the medium used and to their respective community or communities. c) The person does not consent to the use of their personality. d) Damages, either emotional or financial losses, are proven although recent judicial rulings would indicate the right of privacy is recognized even in the absence of damages).” The Plaintiff submitted that her image and likeness, used in a marketing campaign for the Defendant’s products, was clearly identifiable by the general public and in the medium used for exploitation of such image and likeness by the Defendant. The Plaintiff clearly established that she did not consent to such exploitation and that there was clear damage both emotional and financial due to the actions of the Defendant. http://www.kenyalaw.org - Page 5/14