THE RIGHT TO PRIVACY AND DIGNITY: AN ANALYSIS OF MWONGA & 4  OTHERS V OGEGA & ANOTHER

Case Name: Mwonga & 4 others v Ogega & another (Petition E346 of 2023) [2024] KEHC  16469 (KLR) (Constitutional and Human Rights)

Citation: Mwonga & 4 others v Ogega & another [2024] KEHC 16469 (KLR) Court: The High Court of Kenya

Court Station: The High Court at Nairobi (Milimani Law Courts)

Court Division: Constitutional and Human Rights

Judge(s): LN Mugambi

Date of Judgement: 31^st December 2024

Facts

The Petitioners were alumni from the University of Nairobi (UoN) having graduated in 2017.  During their graduation, the university took various photographs of the celebration. Subsequent  to this, their photographs were used by the university and other educational institutions and at  the same time acknowledging the source. The Respondents, Shining Institute of Professional  Studies, obtained these photographs and circulated them on various social media platforms and  publicised them on billboards, brochures and banners. This was done without the consent and  knowledge of the Petitioners and no compensation on the same.

Following this, the Petitioners issued a demand letter to the Respondents calling for them to  take down the photographs; which was blatantly ignored. The case affirmed the rights to a  person’s privacy, intellectual property and human dignity.

Issues

The High Court was presented with two issues:

1. Whether the use of the Petitioners’ images violated their rights to human dignity, privacy and property as enshrined in the Constitution of Kenya, 2010.
2. Whether the Petitioners were entitled to compensation from the damage occasioned on them.

Arguments

The Petitioner’s counsel argued that:

1. The Respondents used the Petitioners’ images without their consent or knowledge, thereby violating their constitutional rights to dignity and privacy under Article 28 and 31 of the Constitution of Kenya (2010) respectively. Reliance was placed in T.O.S v Maseno  University & 3 others [2016] eKLR where it was held that the publication or use of a  person’s the images without their consent violates that person’s right to privacy.
2. The Respondents’ claim of lack of knowledge and financial hardship lacked a legal basis in law. The Petitioner asserts that these arguments do not have mitigating effects on liability in light of violation of constitutional rights.
3. The Petitioners ascertained that they were entitled to compensation for the harm occasioned on them. Reliance was placed in Ann Njoki Kumena v KTDA Agency Ltd [2019] eKLR and Wanjiru v Machakos University [2022] KEHC 10599 where the Court awarded the Petitioners Kshs. 1,500,000 and Kshs. 700,000 respectively for violation of their rights to  privacy and dignity. The Petitioners urged the Court to award Kshs. 3,000,000 for the  unauthorised use of the Petitioners images.

The Petitioners arguments emphasised their constitutional rights to privacy and dignity and  sought redress for the harm caused.

The Respondent’s counsel argued that:

1. The Petitioner’s photographs were stock photos readily and publicly available online having been used by a variety of websites. Additionally, the photographs were unlicensed and unaccredited to the Petitioners.
2. The Petitioners should have refrained from sharing their photos online if they wanted to prevent unauthorised use. The Respondents denied any knowledge that the persons in the photos were the Petitioners as alleged.
3. The Respondents had no intention of misappropriating the image of the persons in the photos. Subsequent to the demand letter issued to them, they offered an unconditional apology to the Petitioners and offered to pull down the photos from their social media  accounts.
4. The Respondents debunked the assertion that they used the Petitioners photographs to boost traffic to their institution. They maintained that they had not obtained any financial benefit from the use of the Petititioners images and were in fact experiencing financial hardship.  Moreover, the Petitioners should have expressed their discontent with their use of the  images. The Respondents depone that this could have been fair.
5. The Respondents urged that the Court declare their apology sufficient asserting that they had not violated the Petitioners constitutional rights. They further asserted that the financial burden from the suit would collapse their institution.

The Respondent’s arguments aimed to justify the use of the Petitioners photographs asserting  that they had not violated their constitutional rights as alleged.

Judgment

The Court awarded the Petitioners with Kshs. 1,120,000 in total; Kshs. 280,000 payable to each  Petitioner. It asserted that this was a fair and reasonable compensation for the violation of their  rights to privacy and dignity through the unauthorized use of their images by the Respondents,  to advertise and boost their business.

Furthermore, the Court issued an order of permanent injunction directing the Respondents to  take down and terminate the use of the Petitioners images if they had not already done so.

Ratio Decidendi

1. Whether the use of the Petitioners’ images violated their rights to human dignity, privacy and property as enshrined in the Constitution of Kenya (2010)

The Court in determining this issue, relied on the following:

Data Protection Act (2019)

Section 2: Defines data, an identifiable natural person and personal data. It gives effect to  Article 31 (c) and (d) of the Constitution of Kenya (2010).

Section 25: Principles in dealing with personal data.

Section 26: Rights of a person referred to as a data subject.

Section 29: Obtaining consent before collecting personal data.

Constitution of Kenya (2010)

Article 28: Right to dignity.

Article 31: Right to privacy.

Article 40(5): Right to intellectual property.

The case of Jessicar Clarise Wanjiru v Davinci Aesthetics & Reconstruction Centre & 2  others [2017] eKLR where it was considered whether there was a violation of personal data.  This was achieved through the interpretation on whether the Petitioner was an identifiable  natural person. It was held that the Petitioner’s rights to privacy and dignity were violated.

The case also provides for the definition of image rights which are the rights to commercialize  aspects of their personality and prevent others from doing the same. It considered personality to include identity, privacy, reputation and dignity. Identity was defined as a person’s  uniqueness which individualises them.

The case of Mistry v Interim National Medical and Dental Council of South Africa (1998)  (4) SA 1127 (CC) highlighted the factors to consider when determining whether a person’s  right to privacy has been violated. They include:

a) Whether the information was obtained in an intrusive manner.

b) Whether the information was about intimate aspects of the applicants’ personal life.

c) Whether the information involved data provided by the applicant for one purpose which was then used for another.

d) Whether the information was disseminated to the press or the general public or persons from whom the applicant could reasonably expect such private information would be

The case of T.O.S v Maseno University & 3 others [2016] eKLR where it was considered whether the publication or use of a person’s image without her consent and knowledge violated  her right to privacy. The court asserted that the extent to which the right to privacy may be  invaded or exposed depended on the person. The Petitioner contended that she was a private  person and therefore her right to privacy was violated by the Respondent who should have  sought her consent.

The court affirmed that the unauthorized use of the Petitioners images by the Respondent was  unlawful. The Petitioner, being a data subject, has the right to know what their images are used  for; this right must be protected.

The case of Proactive Sports Management Ltd v Wayne Rooney & 3 Others’ [2010] EWHC  1807 (QB) defined image rights as the right for any commercial or promotional purpose of  their player’s identity.

The case of Wells v Atoll Media (Pty) Ltd and another (11961/2006) [2009] ZAWCHC 173;  [2010] 4 All SA 548 (WCC) which relied on Grutter v Lombard and another 2007 (4) SA 89  (SCA), at para 8 Nugent JA, where it was stated that features of a personal identity are capable  and deserving of legal protection.

The case of Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR relied on the case of Issack Hassan vs. Auditor General [2015] where the Court held that the  right to human dignity was the foundation of all other right and together with the right to life,  formed the basis for the enjoyment of all other rights.

The case of Von Hannover v. Germany (no. 2) (nos. 40660/08 and 60641/08) where the Court  reiterated that:

“The concept of private life extended to aspects relating to personal identity such as a  person’s name, photo or physical and moral integrity. It asserted that there was a zone  of interaction of a person with others, even in a public context, which may fall within  the scope of private life. Publication of a photo may thus intrude upon a person’s private  life even where that person is a public figure.”

The case of N W R & another v Green Sports Africa Ltd & 4 others (2017) eKLR highlighted  the elements of a claim for unlawful use of a person’s image to include the: a) Use of a protected attribute: The Plaintiff must show that the Defendant used an aspect  of their identity that is protected by the law. 

1. Use for an exploitative purpose: The Plaintiff must show that the Defendant used their personal attributes for commercial or other exploitative purposes.
2. Lack of consent: The Plaintiff must establish that they did not give permission for the offending use.

The case of Asege Winnie v Opportunity Bank (U) Ltd & Another HCCS No. 756 of 2013 observed that a personality right is the right of an individual to control the commercial use of  their identity. It is classified it into:

1.  The right of publicity.
2. The right to be left alone.

The Court further highlighted elements of infringement of image rights. They include: a) The Plaintiff must be identifiable.

1.  The Defendant’s action was intentional.
2. The Defendant must have acted for the purpose of commercial gain.
3. Whether the Petitioners were entitled to compensation from the damage occasioned on them The Court in determining this issue, relied on the following:

The case of Gitobu Imanyara & 2 others vs Attorney General [2016] eKLR which relied on  Dendy v University of Witwatersrand, Johannesburg & Others [2006] 1 LRC 291 where the  Constitutional Court of South Africa held that:

“The primary purpose of a constitutional remedy was to vindicate guaranteed rights and  prevent or deter future infringements.”

The Court asserted that the award of damages was the appropriate relief required because: a) It would protect the rights that had been infringed.

1. It was in the interests of society as a whole.

The case of Peter Mauki Kaijenja & 9 others vs Chief of the Defence Forces & another  (2019) eKLR where the court declared that the award of damages should be done at the  discretion of the judge. It affirmed that no monetary sum could erase the harm caused. Common  law provides for measures of damages as a guide in assessing the amount of compensation to  be awarded. This is however to be be used simply as a guide and with the discretion of the  court.

The case of GSN v Nairobi Hospital & 2 others(2020) eKLR where the Petitioner was awarded  Kshs. 2,000,0000 for the breach of right to privacy.

The case of Dhabiti Sacco Limited v Sharon Nyaga Civil Appeal No. E083 of 2021 where the  Petitioner was awarded Kshs.1,500,000 for publication of their picture in a calendar.

Conclusion

While Kenya’s constitutional and statutory frameworks robustly protect the rights to privacy  and dignity, this case highlights a gap in public awareness and institutional adherence.  Strengthening legal literacy and enforcing proactive compliance by institutions will be critical  in safeguarding image rights in an increasingly digital society.

Reference(S):

Mwonga & 4 others v Ogega & another [2024] KEHC 16469 (KLR)

Constitution of Kenya 2010

Data Protection Act 2019

MMS Advocates, ‘Photography Laws in Kenya’ < https://mmsadvocates.co.ke/photography laws-in-kenya/> (MMS Advocates, 19^th April 2023) last accessed 21^st July, 2025.

Ashitiva Advocates LLP, ‘Image Rights and Data Protection in Kenya’ <  https://ashitivaadvocates.com/image-rights-and-data-protection-in-kenya/> (Ashitiva  Advocates LLP , 2^nd March 2024) last accessed 21^st July, 2025.

Njaga Advocates, ‘Landmark Judgment on Data Privacy and Dignity in Kenya’ (Njaga  Advocates, 10^th Jan 2025) https://njagaadvocates.com/landmark-judgment-on-data-privacy and-dignity-in  kenya/#:~:text=At%20Njaga%20&%20Co%20Advocates%2C%20we,content%20featuring %20the%20images%20immediately last accessed 21^st July, 2025.

Njaga Advocates, ‘Data Privacy in Kenya: A Comprehensive Overview’ (Njaga Advocates,  10^th Jan 2025) https://njagaadvocates.com/data-privacy-in-kenya-a-comprehensive-overview/ last accessed 21^st July, 2025.