Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR The Plaintiff further submitted that in regard to the objection by counsel for the Defendant to the production of the video without certificate under section 106 B (4) of the Evidence Act Cap 80. The Plaintiff submitted that the matter before this Court, was the unauthorized use of the Plaintiff’s image by the Defendant for commercial gain. The Plaintiff invested a lot of resources, both financial and time, in cultivating her career in the music industry which is very difficult in Kenya, to get to where she is today. The Defendant has trampled on all the hard work and decided to take advantage of the work she has put into developing her brand to market its own brand. DEFENDANT’S SUBMISSIONS It was the Defendant’s submission that on the issue of proof of assignment, the law does not allow the Plaintiff to shift the burden of proof to the Defendant unless she could first prove ownership of copyright and which she failed to. All the Plaintiff was required to prove was that she commissioned for the photograph and therefore the copyright belonged to her. That at the very most, only a temporary or none exclusive licence would suffice for the duration of the campaign as per the terms and conditions of the campaign. One of conditions of the campaign was as follows; “By submitting your photos or videos, you give Tecno the consent to use your work.” Section 33 (4) of the Copyright Act provides as follows; 33 (4) A non-exclusive licence to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct, and may be revoked at any time, but a licence granted by contract shall not be revoked, either by the person who granted the licence or his successor in title, except as the contract may provide, or by a further contract. The Defendant submitted that the Plaintiff has not me the threshold of proving all the ingredients required in a claim of the right to economic gain for use of one’s image and likeness which were laid out in the case of Jessicar Clarise Wanjiru vs Davinci Aesthetics & Reconstruction Centre & 2 Others [2017]eKLR as follows:i. Use of Protected Attribute: The Plaintiff must show that the Defendant used an aspect of his or her identity that is protected by the law. This ordinarily means a plaintiff’s name or likeness, but the law protects certain other personal attributes as well. ii. For an exploitative Purpose: The Plaintiff must show that the Defendant used his name, likeness, or other personal attributes for commercial or other exploitative purposes. Use of someone’s name or likeness for news reporting and other expressive purposes is not exploitative, so long as there is a reasonable relationship between the use of the plaintiff’s identity and a matter of legitimate public interest. iii. No consent: The Plaintiff must establish that he or she did not give permission for the offending use. The Defendant submitted that the Plaintiff did not comply with the mandatory provisions of section 106 (B) 4 of the Evidence Act (Cap 80) Laws of Kenya which provides:“In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following; d)Purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate and for the purpose of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge of the person stating it.” Section 35(5) of the Copyright Act provides as follows:35(5) where in an action for infringement of copyright it is proved or admitted- http://www.kenyalaw.org - Page 6/14