In this matter1 Rafiki Microfinance Bank Limited, the Respondent, used an image of Mutuku Matingi, the petitioner, on its pamphlets in the promotion of its credit or financing facility, “Get a boda”, for the purchase of motorcycles, also known as a “boda boda” in Kenya. The Petitioner was a boda boda driver and made a living transporting people and goods. The photograph or image of the Petitioner had been taken by a photographer at a branch of the Respondent.
The Petitioner averred that he had not consented to the Respondent's use of his photo or image for the purpose of its advertisement or promotions and sought a declaration that the Respondent had violated his right to human dignity and privacy as envisaged in articles 28 and 31 of the Constitution.2 The Petitioner also sought a declaration that the Respondent subjected him to slavery, servitude and forced labour in terms of article 30 of the Constitution as the advertisement was for the Respondent's commercial gain with no financial advantage gained by the Petitioner.
In response, the Respondent alleged that the Petitioner had consented to his photograph being used for the Respondent's promotion. The Respondent could not, however, produce any evidence to prove that it had obtained consent from the Petitioner to use his image.
The court held that the right to dignity includes the right-bearer's entitlement to make choices and decisions that affect his life.3 The court therefore held that the publishing of the Petitioner's image, depicting him as a recipient of a credit facility, violated his right to dignity.
With respect to the issue of privacy, the Court held that the right to privacy encompasses the protection of personality rights, including one's image or likeness, and includes the avoidance of the publication of private photographs. It further held that every individual has the exclusive right to market their image for financial gain, 4 and that the use or use of an individual's image, without his consent, violates his right to privacy.5
On this basis, the Court upheld the petition and ruled that the Respondent had violated the Petitioner's fundamental rights of privacy and dignity and ordered a permanent injunction against the Respondent to restrain its conduct and compel it to refrain from further use of the Petitioner's image without consent. In addition, an award of damages and costs were made in favour of the Petitioner6.
This case reinforces that personality rights fall within fundamental rights enshrined in the constitution and are entitled to protection on this basis.
Of course, this is but one basis on which image rights can be protected. Remedies may also be sought on other grounds including unlawful competition in certain circumstances.
1 Republic of Kenya, in the High Court of Kenya at Machakis (Coram: Odunga, J) constitutional petition no.10 of 2020 in the matter of application under articles 22, 23, 165(3)(b) of the Constitution of Kenya and In the matter of : alleged contravention of fundamental rights and freedoms under articles 19, 22, 23, 25, 27(1), 28, 29(d) 30 &31 of the Constitution of Kenya and In the matter of: the Constitution of Kenya (Protection of rights and fundamental freedoms) practice and procedure rules, 2013 and In the matter of Constitution of Kenya rights enshrined in Chapter Four thereof in so far as the petitioner's constitutional rights were infringed between Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited.
2 The Constitution of Kenya, 2010.
3 Mayelane v Ngwenyama and Another (CCT 57/12)  ZACC 14.
4 Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2 Others  eKLR .
5 T O. S vs Maseno University & 3 others  eKLR.
6 Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited supra at paragraphs 57 (a) to (d).
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