Wangechi Waweru Mwende v Tecno Mobile Limited; Rogers Ouma t/a Ojwok Photograpy (Third Party) [2020] eKLR THE DEFENDANT’S AMENDED STATEMENT OF DEFENCE AND COUNTERCLAIM In response to paragraph 2 of the Plaint the Defendant denies the same and the Plaintiff is put to strict and absolute prove of the same. States that its name is TECNO MOBILE LIMITED, a limited liability company incorporated in Hong Kong as whose address for service is as provided for herein. The Defendant denies paragraph 5 – 11 of the Plaint and further states as follows; a) That at all material times the use of the image and likeliness of the Plaintiff was with the Plaintiff’s knowledge and consent; b) That the said video which was minutes long and featured the image for about only a very insignificant part, together with a host of more images, was duly uploaded on the Defendant’s online social media accounts; c) That the video in which the image was used in was such that no reasonable person would have assumed that the images thereon and the people in them were endorsing the Defendant’s products; d) That at no material time did the Defendant claim that the Plaintiff was endorsing it and or any of its products; e) That apart from the use of the image the subject of this suit, no mention was ever made in the video about the Plaintiff including but not limited to her name, career and music with the image the being but one of hundreds of other images both of persons, animals, things and places. f) That the video aforementioned was uploaded online but immediately removed as soon as the Plaintiff claimed that she was the owner of copyright to the image the subject of this suit and that she had not consented to its use. g) That the intention and purpose of the campaign was to celebrate the beauty, richness and diversity of Kenya and its people and no material and or commercial gain was made from it by the Defendant. The Defendant further stated that it believed that the Copyright owner to the image the subject of this suit was and is a photographer known as OJWOK PHOTOGRAPHY and that the Defendant shall with the consent of this Court institute Third Party proceedings against him. In its counterclaim the Defendant stated that the word or statements made by the Plaintiff and also comments that she allowed to be published by her friends and the general public and which she allowed to remain published on her social media pages in their natural and ordinary meaning meant and were understood to mean of and concerning the Defendant inter alia that:a) That the Defendant fraudulently and or illegally used the Plaintiff’s image without her knowledge and or consent; b) That the Defendant had robbed her and was robbing artists of their rights to earn a living. c) That the Defendant pulled down the video in which her image was featured in a bid to get rid of evidence of its wrongdoing and was getting rid of evidence and in effect obstructing justice; d) That the Defendant is of bad morals, unjust and fraudulent and not deserving of its corporate status as being a competent and professional business undertaking and led by equally endowed officials who should never be trusted. The Defendant avers that the contents of the Plaintiff’s video and post (and also comments that she allowed to be published by her friends and the general public and which she allowed to remain published on her social media pages) were false, malicious and defamatory of the Defendant and the Plaintiff in so publishing and or causing the same to be published was actuated by extreme malice and spite and the same were calculated to injure the Defendant in tis professional and business image. REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM http://www.kenyalaw.org - Page 3/14