Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR c. No Consent: The plaintiff must establish that he or she did not give permission for the offending use. 33. This third test has not been established to the satisfaction of the court. The petitioner alleges she did not give consent at all while the Respondent states that he contracted a designer to do the work and that the designer informed him that he had used the image of his girl friend. It is important to note that petitioner did not rebut these allegations nor did she find it fit to file a supplementary affidavit to shed light on this issue or even deny the allegations or cast doubts. Instead, she opted to leave it to the court to weigh the two accounts. I my view, she had a duty to discharge the burden of prove and prove to the court beyond doubt that she did not grant consent nor did she authorize the designer to use her image. 34. It is a well-established rule of evidence that whoever asserts a fact is under an obligation to prove it [18] in order to succeed. The standard of proof is the legal standard to which a party is required to prove his/her case. The standard determines the degree of certainty with which a fact must be proved to satisfy the court of the fact. In civil cases the standard of proof is the balance of probabilities. In the case of [19] Miller vs Minister of Pensions, Lord Denning said the following about the standard of proof in civil cases:‘The …{standard of proof}…is well settled. It must carry a reasonable degree of probability…..if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.’ 35. In my view the reason for this standard is that in some cases, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. It is a fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the propositions he asserts to prove his claim. The standard of proof, in essence can loosely be defined as the quantum of evidence that must be presented before a court before a fact can be said to exist or not exist. 36. The Respondent also stated on oath that the said designer attempted to extort money from them and after this did not work this case was filed by the petitioner in collusion with the designer. The petitioners failure to respond to such serious allegations casts doubts on whether or not the photographs were published without her consent. 37. The Respondents successfully applied to enjoin the designer as a party, but he was not served. To me, the presence of the designer in these proceedings was of great value to the petitioner who had a burden of proving that there was no consent at all. 38. From the material before me, there is absolutely nothing to demonstrate that the petitioner has discharged her burden of prove to the required standard on the question of whether or not there was a consent. I find that there is no sufficient evidence to demonstrate absence of consent on the part of the petitioner. 39. Similarly, I find no material before me to prove a case against the third Respondent. The fact that the third Respondent licenses and grants permission for erecting Bill boards is not sufficient to hold them liable nor has it been shown that its role includes ascertaining whether or not the advertiser has sought the consent of the persons whose image is used. 40. Thus, in view of my finding above, I find that the petitioner has not established liability against the Respondents to the required standard. http://www.kenyalaw.org - Page 6/9