The High Court has struck out a petition by a man seeking damages from Nairobi Java House Limited for using his photograph on its recruitment portal without consent.
Justice Roselyne Aburili dismissed the petition by Gidraf Gatira Maingi, finding that he had failed to first pursue available statutory remedies before approaching the court.
Maingi was employed as a steward at Java House from February 2015 until July 2021.
“...during his employment in the period around 2015–2016, he was photographed while wearing company-branded merchandise,” the court heard.
“In December 2021, he discovered through a friend, David Odhiambo, that Java House was advertising using his photograph-image and name. That upon checking shortlist.net/company/java-house, the petitioner confirmed his image and name were being published globally without prior informed consent.”
He told the court that despite writing to Java House, his demand letter went unanswered.
Maingi sought declarations that the company had violated his rights to privacy, dignity, publicity and information under Articles 28, 31 and 35 of the constitution.
He prayed for general damages of Sh10 million and costs.
“The respondent [Java] fundamentally confused copyright ownership with publicity and privacy rights,” Maingi submitted.
He maintained that while the employer may own the copyright to the physical photograph, it still required his prior informed consent to publish it for marketing purposes.
Java House countered that Maingi had voluntarily consented to the photographs during his employment.
Daisy Ogola, legal and compliance officer, argued that the photographs were taken “with the petitioner's knowledge and voluntary consent during the course of his employment”.
She confirmed Maingi had been in Java House’s employment until “he was lawfully and fairly subjected to summary dismissal following a disciplinary hearing regarding allegations of theft and lack of integrity”.
The company pointed to clause 11 of his employment contract, under which he assigned all intellectual property rights as works made for hire and waived all moral rights.
The company contended the image was used solely as a profile picture on its recruitment portal to provide an accurate representation of on-duty staff, rather than for commercial marketing or monetary gain.
Java House further stated it had voluntarily removed Maingi’s image upon learning of his grievance, despite denying liability.
Maingi rejected the contractual interpretation.
He argued that under clause 11, signing the requisite paperwork was a condition precedent to any waiver or assignment of rights and challenged Java House to produce evidence of any formal request or signed waiver authorising the publication of his photograph.
He further argued that “employees do not forfeit their right to privacy”.
Justice Aburili found that Maingi’s grievance fell squarely within the jurisdiction of the Data Protection Commissioner under the Data Protection Act No 24 of 2019.
“The fact that the petitioner alleges constitutional violations does not remove the obligation to first pursue remedies under the Data Protection Act,” the judge ruled.
“This court lacks initial jurisdiction over the petition because the petitioner did not first exhaust alternative remedies by filing a complaint with the Data Protection Commissioner.”
The court observed that Sections 8 and 9 of the Data Protection Act grant the Office of the Data Commissioner authority to investigate complaints, facilitate dispute resolution and impose sanctions for breaches.
“Where Parliament donated powers to an entity like the Data Commissioner to determine if one's privacy rights under Article 31 are infringed, then it means as much,” the judge stated.
Aburili noted Maingi had not demonstrated the remedies under the Act were ineffective or inadequate.
The judge emphasised that declining jurisdiction does not limit access to justice, given that the available administrative pathway offers an effective solution to the dispute.
The court struck out the petition, with each party bearing their own costs. Maingi was granted liberty to invoke the provisions of the Data Protection Act for redress.
