1. Wanjiru v Machakos University (Petition E021 of 2021) [2022] KEHC 10599 (KLR) (3 August 2022) (Judgment)
2. The High Court at Machakos has faulted a university for using the image of a former student without her consent and awarded her Kshs 700,000/- in damages. The court held that this violated the Petitioner’s right to privacy and human dignity guaranteed by the Constitution of Kenya, 2010 and the Data Protection Act.
3. The gist of the case is that the Petitioner discovered that the university was using her picture to advertise and market its computer packages courses.
4. The Petitioner claimed that the picture was taken without her knowledge or consent and that the university earned profit from its use.
5. On the other hand, the university admitted to using the picture. It argued that it was university policy to publish pictures of its graduands, students and staff on the university website and other platforms managed and controlled by it.
6. The university contended that being a public institution partly funded by public funds, it was not engaged in any commercial or profit-oriented business. Therefore, it was not unlawful to use the picture as there was a reasonable relationship between the parties.
7. The court was required to address four issues in rendering its decision;
   1. Whether the use of the picture without the Petitioner’s consent violated her right to privacy and human dignity;
   2. Whether the picture was used for commercial gain;
   3. Whether public interest outweighs an individual’s right to privacy in image rights; and
   4. Whether the Petitioner is entitled to compensation.
8. On the first issue, the court observed that as a data subject, the Petitioner has a right to be informed of the use to which her personal data is to be put. The university ought to have known the Petitioner is a private person and sought her consent before using the image. Her right to privacy and dignity was violated by publishing the image without her consent.
9. On the second issue, the court held that the advertisement was to inform the public of the courses being offered and cause the public to apply for the course at a fee which would, in turn, result in commercial gain.
10. On the third issue, the court noted that the practice of the Respondent to take and use pictures of its graduands without consent was unconstitutional. An individual has personality rights over their images, including the exclusive right to market, control and profit from the commercial use of one’s image. The Respondent should not hide behind the public interest in using the Petitioner’s image for commercial gain.
11. On the fourth issue, the court held that the Petitioner had demonstrated that image was used without her knowledge or consent, which was an infringement of her right to privacy, right to dignity and right to property. The court directed that the Respondent stops publishing or using the Petitioner’s image in its advertisements without her consent and pay her Kshs. 700,000/- in damages.

Researched & Written by Fiona Tambo

Edited by Anne Babu