Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR a) Article 11(2)(c) recognizes culture as the foundation of this nation and provides that the State shall promote the intellectual property rights of the people of Kenya. The Plaintiffs intellectual property right to control the commercial exploitation and use of her image has been infringed. b) Article 22(1) of the Constitution of Kenya 2010 provides that every person has the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or is threatened. The Plaintiff’s right to privacy under the Bill of Rights has been infringed and the Plaintiff therefore has locus to institute this suit. c) Article 23 (1) of the Constitution of Kenya 2010 provides that the High Court has the jurisdiction in accordance with Article 165 to hear and determine applications for redress of a denial, violation or infringement of, or threat to a right or fundamental freedom in the Bill of Rights. This Court has jurisdiction to hear this claim and grant appropriate relief in accordance with Article 23 (3) including a Declaration of Rights and an Order for compensation. d) Article 31 of the Constitution of Kenya 2010 provides that every person has the right to privacy which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. The Defendant has infringed on the Plaintiff’s right to privacy of her image and published photos of the Plaintiff without consent and for commercial gain. e) Section 33 (3) of the Copyright Act provides that no assignment of copyright to do an act the doing of which is controlled by copyright shall have effect unless it is in writing signed by or on behalf of the assignor. The Plaintiff had not assigned the use of her image and the use of her image by the Defendant is an infringement. f) Section 35 of the Copyright Act provides that copyright shall be infringed by a person who without the license of the owner of the copyright does or causes to be done an act the doing of which is controlled by copyright. THE DEFENDANT’S STATEMENT OF DEFENCE The Defendant in its statement of defense admits that there is no subsisting suit and/or proceedings with the Plaintiff over the same subject matter and denies each and every allegation in the Plaint as if the same were set for verbatim and denied herein seriatim. NOTICE OF MOTION DATED 15TH MAY 2017 By a notice of motion dated 15th May 2017, pursuant to Order 1 Rule 15, Order 8 Rule 3, 5 and 8 and Order 51 Rule 1 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law, the Applicant/Defendant sought orders; a) That the Court grants leave to the Defendant to amend its defence and /or file a counterclaim against the Plaintiff. b) That the Court grants leave to the Defendant to issue and serve a Third Party Notice upon RODGERS OUMA trading as OJWOK PHOTOGRAPHY. The Application was based on grounds; a) That the amendment was necessary to determine the real question in issue between the parties to this suit. b) That the pleadings had already closed and the leave of the Court was necessary for the amendment to be made. c) That the Defendant is entitled to indemnity and/or contribution from the proposed Third Party for any judgment that may be issued against it; d) That it is in the interests of justice that the Defendant is allowed to amend its defence, institute a Counter claim against the Plaintiff and the proposed Third Party be joined to facilitate the determination of the issues in this suit. http://www.kenyalaw.org - Page 2/14