Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR The 1st Defendant in the Amended Defence and Counterclaim opposed the Plaintiff’s claim as follows; Whereas the 1st Defendant admitted it ran an online campaign dubbed #see9seekenya as a way to celebrate the beauty, richness and diversity of Kenya and its people, it stated that at all material times the use of the image and likeness of the Plaintiff was with the Plaintiff’s knowledge and consent. The Defendant said the video was minutes long and featured the Plaintiff’s image for a very insignificant part, together with a host of more images which were duly uploaded on the Defendant’s online social media accounts. The Defendant indicated that at no material time did the Defendant claim that the Plaintiff was endorsing it or any of its products. The Defendant deposed that the aforementioned video was uploaded online but immediately removed as soon as the Plaintiff claimed that she was the owner of the copy right to the image the subject of this suit and that she had not consented to its use. Therefore, the Plaintiff has suffered no damage. The Defendant further states that at all material times it had believed that the Copy right owner to the image the subject of this suit was and is a photographer known as Ojwok Photography. The Defendant applied to join him as 3rd party. On 7th February 2018, Hon L. Onguto J granted joining the intended 3rd party by serving him through substituted service within 21 days. On 21st May 2018, the defendant filed Affidavit of Service to confirm the 3rd Party was served. The 3rd party Ojwok Photography despite service failed to appear in Court, or to be represented or to furnish the Court with reasons, circumstances leading to his absence for the Court to consider. He also did not file any document/pleadings to controvert any claim. This Court is persuaded by the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017]eKLR, Mativo J. observed; “The right to privacy is guaranteed under Article 31 of the Constitution of Kenya, privacy has been defined as ‘the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information. In the above sense any intrusion of personal life by whatever means or form such as photography, written articles or caricatures may be ground for an action for breach of privacy’ On 1st November 2019 the Court Counsel and parties watched the Video and it depicted the Plaintiff who appeared for seconds in a Tecno Mobile advertisement captioned See9SeeKenya. The evidence on record confirms that the Plaintiffs Image was used by the Defendant without her knowledge, approval or consent. Mr Ogolla, Counsel for the Defendant submitted that the subject/plaintiff appeared in less than 3 seconds in a video clip of 60 seconds. The subject did not appear specifically captioned but was part of general depiction of images supplied or conveyed by different participants in the competition. Mr Gichuhi, Counsel for the Plaintiff submitted that the 1st caption was #see9seekenya which was a derivative of Tecno mobile phone tecnoC9. The entire campaign was geared to increasing publicity of the Techno mobile C9phone and advertising by increasing the Techno brand. The Court confirmed that it was advertisement of #see9seekenya campaign by Techno mobile. The Plaintiff appeared in a photograph/picture that was ran among other pictures/photos captioned ‘people’ the Plaintiff ‘s picture/photo appeared for almost 14 seconds or so in a clip of almost 1 minute. After watching the video, the Defendant through Counsel objected to the video as it was contrary to Section 106 (4) A of the Evidence Act Cap 80. The Plaintiff through Counsel failed to present a certificate. On 6th December 2016, the Plaintiff annexed to the Plaint a List of Documents that included the video of the Techno Mobile Campaign that featured the Plaintiff. The Defendant was served and did not raise any issue with regard to objection to viewing of the video. On 9th& 16th March 2017, Parties through Counsel filed Case Management Checklist & Pretrial Questionnaire under Order 11of CPR 2010 and the issue of the certificate required under Section 106 of the Evidence Act was not raised. During the hearing, this Court indicated that the video would be watched at the close of proceedings, the Defendant did not raise any objection to the same or requirement of the certificate. On the day the video was presented, in the presence of Parties through their respective Counsel, no objection was raised until after we all watched the video. To ask the Court to expunge the video watched when there was ample opportunity to object to its presentation in Court is not practical in the circumstance. The Court cannot possibly ‘unhear’ or ‘unsee’ what was presented and already http://www.kenyalaw.org - Page 8/14