Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR The Plaintiff in her reply to defence dated 7th August 2017, stated that it is her image and likeness that the Defendant exploited in their online campaign, which image and likeness she has the right to control. The Plaintiff further avers that the Defendant has not shown any proof of assignment of rights under the Copyright Act from the Plaintiff. The Plaintiff stated that she is guaranteed a right to privacy under the Constitution of Kenya, 2010 and any limitation to the said right must be legally provided for under the Laws of Kenya. In reply to defence to counterclaim the Plaintiff stated that her statements were nothing but the truth and were made with the sole intention of making it clear that she does and did not endorse the Defendant’s brand and had not entered into any agreement with the Defendant to allow the Defendant to exploit her image and likeness for the campaign. HEARING PLAINTIFF’S CASE On 27th June 2019, the Plaintiff, Wangechi Waweru Mwende PW 1 testified relying on her statement that she is a renowned singer, song writer and rapper in the Kenya music industry and she endorsed various campaigns and brands for different corporate entities. In early July 2016 she was called by her colleague and informed that her photo was on the Facebook page in the #see9seeKenyaadvertisement. PW1 checked social media pages Facebook, Twitter & Instagram and confirmed it was true. PW1 did not provide her image, and she did not consent to her image being used nor was she consulted and she was not compensated. She claimed compensation, as she is a known brand. The Defendant, Tecno Mobile used her image and likeness in form of advertisement and she came across as endorsing the Defendant’s product. PW1 stated in cross -examination that she did not know Ojok Photographer, she had never met him or interacted with him. PW1 discovered he had her pictures, the watermark and signature on the pictures were not endorsed/signed by her. PW1 confirmed the pictures could have been taken at Blankets & Wine function she attended, She did not know photographs were taken, she did not employ or commission anyone to take pictures. The Photographer would not have a copyright as alleged by the Defendant. Whoever, took the picture never sought her permission to take or use her image /likeness. On being tagged, PW1 stated she is tagged30 times a day and does not use all tags. PW1 consulted her lawyers on the matter who the wrote to the Defendant on 22nd July 2016 on claim for compensation for PW1’s image/likeness use and the Defendant put down all adverts thereafter. The Defendant responded vide letter dated 1st August 2016 that any copy right issue is/was best resolved between the Plaintiff and Photographer. The Plaintiff sought prayers in the Plaint. DEFENDANT’S CASE On the same date, the Defendant, Serah Owuor Sano DW1 testified relying on her Witness Statement and stated that she is employed by Carl Care Service which ran the campaign for the Defendant Tecno Mobile Limited to show Kenya’s unparalleled beauty richness and diversity of Kenya. They received a letter from the Plaintiff on 22nd July 2016 through her advocates that the Plaintiff’s photograph was used without her consent. The campaign ran from 7th July – 22nd July 2016 when the campaign stopped. They put down the pictures as were advised by their advocates. The Defendant did not get any commercial gain. DW1 stated that the Plaintiff wrote a letter and said that the Defendant was fleecing artists and people said that they were not going to buy the Tecno 9 phone. http://www.kenyalaw.org - Page 4/14