Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 others [2017] eKLR alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. 3. A commonly cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her "persona" is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech. 4. The uncontested facts of this case are that in or July 2016, the first Respondent used the petitioners image in its Bill Boards erected along Kenyatta Hospital Road in Nairobi advertising reconstruction and plastic surgery. A similar advertisement appeared in its website www.da-vinci.ke. 5. The petitioner denies ever granting her consent to the use of her image and avers that the first and second Respondents have continued to benefit financially from using the said images to promote their work, hence economically exploiting the petitioner. The petitioner also avers that third Respondent has also benefitted financially from levies imposed on Bill boards within Nairobi County. 6. The petitioner maintains that the use of the Bill boards for commercial gains is a violation of her rights to property under article 40 of the constitution, hence the reliefs sought in the petition. 7. The Respondents response is contained in the Replying affidavit of Dr. Ferdinard Nangole Wanjala filed on 18th November 2016, the crux of which is that he is not a director of the first Respondent, hence he has been wrongfully enjoined, and that on or about November 2015, they decided to set up a website for their business. They engaged the services of a one Tony Bogoko, a designer trading as loopah Experience. 8. He avers that the designer gave them a quotation and they agreed on a working plan for him to develop their website including logos, and upon payment he commenced the work and as he was about to finish, they noticed that he had used part of a female's face and upon inquiring he informed them that it was proper to use someone's face. He further informed them that the lady was his girl friend and that he had obtained her consent and approval before using her face on the website. 9. Satisfied with the said explanation and with no reason to doubt it, they asked the designer to improve website, but upon failure to do so, they terminated the services of the designer on 14th April 2016 and on 16th April 2016, the designer wrote to them confirming that he had terminated the website and that the same was no-longer accessible by the general public. 10. He further avers that, prior to the termination, they had also engaged an outdoor advertisement agency, Discovery Media Services, who set up four lamp posts long hospital road from the beginning of July 2016. He relied on the above information, but upon receiving a demand letter from the petitioners advocates, they pulled down the Bill boards and cancelled the advertisements. Despite having pulled down the advertisements, they were sued in these proceedings on 7th October 2016. 11. He denies malice, bad faith or ill will and insists that this suit is a scam between the designer and the petitioner to extort money from the Respondents. He adds that this petition was filed after a failed attempt by the petitioner to obtain Ksh. 1,837,000/= from the Respondents and further, the petitioner herein has approached the court with unclean hands having failed to disclose that the designer was her boy friend. http://www.kenyalaw.org - Page 2/9