Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR a) That an infringement was committed; but b) That at the time of the infringement the defendant was not aware, and had no reasonable grounds for suspecting, that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement whether or not other relief is granted under this section. In Alternative Media Limited vs Safaricom Limited [2005]eKLR, the court held that; “in a nutshell, the plaintiff has failed to place before me such material as would enable the court carry out any meaningful calculation of the damages awardable to it. I also hold that the Plaintiff has failed to prove that it is entitled to any damages for the infringement of its moral rights, pursuant to section 32 of the Copyright Act. I decline to order either an inquiry as to damages or an account of profits. As far as I am concerned, these two remedies would have been available to the plaintiff only if it had opted to first have the issue of liability determined. In that event, once the court had made a pronouncement on the issue of liability, the Plaintiff could have been put to an election, and appropriate directions would have been made for further proceedings. But, the Plaintiff already sought to prove the damages it was entitled to, albeit unsuccessfully. In these circumstances, I can do no more that to award the plaintiff, nominal damages. Accordingly, I hereby award to the Plaintiff the sum of Ksh 100,000/- as general damages for the infringement of its copyright.” In Phinehas Nyagah vs Gitobu Imanyara [2013] eKLR, Odunga J held that; “Evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts. That may lead to an inference of malice. … malice may also be inferred from the relations between the parties… the failure to inquire in the facts is a fact from which inference of malice may property be drawn.” DETERMINATION The Court considered the pleadings and evidence adduced by parties and submissions. The issues that emerge for determination are as follows; a) Is the Plaintiff’s claim of Defendant’s use of the Plaintiff’s image and likeness published online and available to global audience without restriction amount to infringement of Plaintiff’s right to privacy protected by Article 31 COK 2010 and deprivation of legitimate expectation of compensation for use of her likeness and image sustained" b) Is the Defendant’s claim that at all times the copyright author or owner of Plaintiff’s image is Ojwok Photography who submitted the image to the Defendant and has been joined as 3rd Party to these proceedings sustained" c) Has the Defendant proved/established its counterclaim on defamation" d) If Liability is found, what is the quantum" PLAINTIFF’S CLAIM The Plaintiff’s claim is of the 1st Defendant’s use of Plaintiff’s image and likeness in social media platforms Facebook, Instagram, Twitter and You tube to advertise and endorse the campaign see9seekenya between 7th – 20th July, 2016 without her knowledge consent or approval. The plaintiff annexed to the Plaint, List of documents that included screenshots of campaign by Tecno Mobile Kenya on Official Tecno Mobile Kenya Instagram Account, which had/has the Plaintiff as one of the people in picture. Another caption with a picture of the Plaintiff on video on the Techno mobile See9seeKenya WinCamonC9 – Tecno mobile community. A copy of Plaintiff’s picture on Tecno Kenya Mobile page on the competition, the judges and winners. The Plaintiff relied on Articles 22 23 31 & 40 (5) of COK 2010 and Sections 33 & 35 of Copyright Act to vindicate her claim through access to justice by enforcing constitutional right of right to privacy. http://www.kenyalaw.org - Page 7/14