Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR internalized. In adversarial proceedings, the objection ought and should have been raised before watching the video and no reason is advanced why the objection was not raised at the time. Section 106 of Evidence Act is not time bound. The Court allowed the Plaintiff to regularize the matter and later on presented a certificate to which parties were allowed to submit on. This Court is guided by the case of; Keshavji Jivraj Shah vs Kanwal Sarjit Singh Dhiman [2019] eKLR supra where the Court observed; “21. … the provisions of Article 159(2d) of the Constitution which requires the court to do substantive justice without undue regard to technicalities. The Constitution underpins the overriding objective in sections 1A and 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which imposes on the parties and their advocates to assist the court in ensuring substantive justice is achieved. The respondents ought not be permitted to defend their case by ambush where full discovery has been made and opportunity given to the parties, at the pre-trial conference, to raise all objections concerning admissibility of documents and other evidence in advance of the hearing.” The import is that the video confirmed the use of the Plaintiff’s image and likeness/photo/picture on the Techno mobile video that advertised the #see9seekenya campaign. The advertisement consisted of the various pictures/photos submitted in the competition by various artists in a bid to win the Techno C9 phone, which increased coverage and Defendants publicity. The Plaintiff’s picture was part of the advertisement of Techno mobile brand and products and seemingly the Plaintiff’s picture implied and nuanced endorsement of Techno Mobile Company brand and quality of its products. The advertisement that had the Plaintiff’s photo ran for 2 weeks from 7th July – 22nd July 2016 on all social media platforms; Facebook, YouTube, Instagram and Twitter. It was not controverted that the Plaintiff is a renowned singer, songwriter and rapper popular among youth. For a multinational company resident in Kenya, by using the Plaintiff’s image and likeness in the advertisement of the campaign, it may have had dedicated clientele but gained vast potential and increased clientele for its products. With regard to whether the Plaintiff gave consent for her image /likeness/photo/picture to be used as part of the Defendant’s campaign and advertisement, the Plaintiff testified that she was alerted on the use of her image in social media. The Defendant submitted that the Plaintiff during cross examination stated that the photograph with her image was taken with her consent. The Court record confirms the Plaintiff’s examination in chief was she did not provide the image, she did not consent she was not consulted and she was not compensated for use of her image. In cross examination by Defendant’s Counsel, the Plaintiff identified photographs at Pg 5 & 6 as her photographs but the signature and watermark were not hers. The Plaintiff stated that since she seemed to be smiling at the camera, she may have consented to the photographs being taken. The Plaintiff intimated the photographs could have been taken at ‘Blanket & Wine’ function, she could not remember but many photographs were/are taken of her at various functions. These answers do not amount to the Plaintiff admitting giving consent to taking of the specific photograph, that was used in the Defendants campaign. The Defendant further submitted that it notified the Plaintiff by ‘’tagging’’ through social media accounts and without her raising any objections, consent on the part of the Plaintiff could be inferred from her conduct. The Plaintiff admitted to being techno savvy and a frequent user of social media she would have raised any objection at the earliest opportunity. In cross examination, the Plaintiff stated that she receives almost 30 tags daily and she does not go through all of them each day. The Court was not presented with any evidence of communication, negotiations and/or agreement on the use of the Plaintiff’s image and likeness in the Defendant ‘s campaign and advertisement. There is also no evidence of Plaintiff submitting her photograph to /in the Defendant’s competition. The Defendant stated that Ojok Photography an entrant to the Techno Mobile #see9seekenya competition presented the Plaintiff’s photograph. He was joined as 3rd party to the proceedings. Despite service he entered no appearance nor filed any documents in Court. http://www.kenyalaw.org - Page 9/14