- On February 10, High Court judge Asenath Ongeri sitting in Kericho declared that the university violated fundamental rights to privacy and human dignity by publishing an image of Shimlon Mwangi Kuria without his express consent.
Image: KABIANGA UNIVERSITY/FACEBOOK
The University of Kabianga has been ordered by the court to pay a former University of Nairobi student Sh500,000 for using his image in online marketing without his consent.
On February 10, High Court judge Asenath Ongeri sitting in Kericho declared that the university violated fundamental rights to privacy and human dignity by publishing an image of Shimlon Mwangi Kuria without his express consent.
"Judgment be and is hereby entered in favour of the petitioner against the Respondent in the sum of Sh500,000 plus costs and interest at court rates from the date of this judgment until payment in full", the judge ruled.
The judge also issued a permanent injunction restraining the University from publishing or using Kuria’s image or likeness in its advertisement without his consent.
Mwangi through his lawyer Yassin Hussein Abdi of Hussein and Omar Advocates said he was pictured at a graduation ceremony of the University of Nairobi on 20 December 2019.
He said about one year later or thereabouts, the University of Kabianga published the same image on its website inviting stakeholders to a Webinar that was to be held on July 2021 to validate a proposal for a pipeline project in partnership with the African Development Bank on how universities cope/mitigate the challenge of COVID-19.
"The Respondent used Mwangi's image/likeness and persona without his express consent for marketing purposes to solicit funds from the African Development Bank," lawyer Hussein argued in court.
Mwangi maintained that the University's actions were an utter infringement of his fundamental rights and freedoms.
He avered that he was reliably advised that for his image to appear in such advertisement, the respondent should have sought the petitioner's consent and sufficiently paid for such services.
He argued the respondent's action subjected him to psychological torture because the society's peers, Associates, family, business partners and affiliates perceive him to have graduated from University of Kabianga thus concluding that he had been untruthful of his academic credentials from the University of Nairobi.
Unless his prayers are granted, he will continue to suffer the complained violations in a manner that cannot be compensated in damages.
The University of Kabianga opposed the petition through Professor Wilson Kipngeno in which he deposed that the matter raised by Mwangi was not within the realm of the constitutional dispute to be determined by the High Court and that the same should have been litigated in a Small Claims Court or the Magistrate Court.
Kipngeno denied being in a profit-making business and that the petitioner's picture as published on its website did not amount to infringement of the petitioner's rights but rather portrayed him in a positive light as a graduate.
He maintained that Mwangi lacked property rights over pictures taken during a public ceremony and that he did not show that the University did not use his image for commercial or other exploitative activities.