16. The petitioner further submitted that the Respondent infringed on his right to dignity in violation of Article 28 of the Constitution since the petitioner’s ability to make choice on his private life was hindered damaging his reputation and causing him psychological torture and that the Respondent’s use of petitioner’s image without his consent infringing on his privacy was an automatic violation of his right to human dignity. He cited the cases of Ahmed Issack Hassan v Auditor General [2015]eKLR, Dawood and Another v Minister of Home Aairs and Others (CCT35/99) [2000] ZACC 8, Mayelane v Ngwenyama and Another (CCT 57/12) [2013] ZACC 14 and MWK & Another v Attorney General & 3 Others [2017] eKLR. 17. The petitioner maintained that the Respondent contravened his personality rights that is the right to control the commercial use of his image and likeness by publishing the petitioner’s image without his consent in a bid to solicit funds from the African Development Bank, thus commercially benetting from the use of the said image. He cited the cases of NWR & another v Green Sports Africa Ltd & 4 Others [2017] eKLR Nairobi Constitutional Petition 343 of 2016 and Von Hannover v Germany (no.2), Grand Chamber Judgement of February 2012, 96. 18. The Petitioner submitted that he be awarded Kshs. 5,00,000/= for the losses he suered as a result of the infringements on his right to privacy, dignity as well as personality right and that the respondents be ordered to pay General Damages for breach of his fundamental rights as enshrined in the constitution. He cited the case of Edward Akong’o Oyugi & 2 Others v Attorney General [2019] eKLR. 19. The Respondent reiterated that the matter as raised did not t within the realm of constitutional dispute for the determination by the High Court and urged the Court to invoke the tenet of constitutional avoidance as was explained in Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others, Supreme Court Petition No 14, 14A, B & C of 2014. 20. The Respondent maintained that the matter ought to have been agitated in the magistrate’s courts as it would be a matter of a tortious action but the subject of strict proof on liability. He cited the case of Gabriel Mutava & 2 Others v Managing Director Kenya Ports Authority & Another (2016) eKLR, Harrikissoon v Attorney General, (1980) A.C 265, and Re. Application by Bahadur, (1986) LRC (Consult) 297. 21. The Respondent submitted that the petition failed to meet the structures of pleading a constitutional petition with precision as laid down in the cases of Anarita Karimi Njeru v Republic [1979]eKto infLR Nairobi Miscellaneous Criminal Application 4 of 1979 and Mumo Matemu v Trusted Society of Human Rights Alliance (2014) eKLR. 22. The respondent further submitted that the respondent is not in a prot-making business as it is largely funded by public funds and that the picture in question was taken during a public graduation ceremony and the petitioner could not claim rights over a picture taken in such public functions. 23. The respondent reiterated that the publication of the petitioner’s image in its website did not infringe the petitioner’s’ rights but portrayed him in a positive light as a graduate and that petitioner’s claim that he suered psychological torture and damage in his reputation are unfounded as both the University of Nairobi and University of Kabianga are universities in Kenya established under the Universities Act, 2012. 24. The Respondent submitted that the petitioner’s image was used for purposes of news reporting and not for exploitation as the Respondent was inviting stakeholders for a webinar and not to solicit funds. The Respondent further submitted that the decisions relied upon by the petitioner were distinguishable from the petition before court as the same missed vital ingredients and that the court lacked jurisdiction. kenyalaw.org/caselaw/cases/view/251166/ 3