In July 2022, Tom Mathoka Muthama visited Hornbill Pub in Machakos for an evening out with friends.
Two days later, while scrolling through Facebook, he saw photographs of himself taken at the club and posted on the official “Hornbill Machakos” page.
The images, bearing the club’s watermark, had been taken without his knowledge or consent. In a petition filed on March 14, 2023, Muthama said the photographs were used by the club’s agents to advertise and market the business without authorisation.
He told the court that the photos were taken without his express consent, knowledge, or authority and were used for commercial gain by giving the establishment visibility and attracting more customers.
After discovering the post, Muthama issued a demand letter dated August 3, 2022, seeking an explanation and requesting that the photographs be taken down. The images were later removed.
In court documents, Muthama reiterated that the photographs were taken without his express consent, knowledge, or authority, and were thereafter used commercially by the hotel to gain visibility.
Clubs have for years shared images of people dressed in skimpy outfits, or caught in compromising positions or in places they are not supposed to be.
Photo credit: Shutterstock
He added that the club’s conduct subjected him to ridicule among colleagues in the legal sector, some of whom assumed he was a brand ambassador for the establishment.
Muthama argued that his right to privacy, dignity, and proprietary rights had been infringed and sought compensation and costs.
He submitted that the club had breached or infringed on his right to privacy and human dignity, and also his proprietary rights.
He urged the court to find that he was entitled to be compensated for the illegal use of his image and likeness to advertise and market the business.
In his submissions, Muthama further urged the court to award him Sh5 million for the wrongful use of his image and for allegedly maligning his reputation.
Despite being served with the court papers and an affidavit of service filed in court on April 17, 2023, the management did not defend the case or file any response.
In its judgment, the High Court in Machakos stated that the evidence showing the photo had been taken and published without Muthama’s consent was not challenged.
The court in December 2024 found that Hornbill Pub had violated Muthama’s constitutional rights to privacy and human dignity under Articles 28 and 31 of the Constitution.
The court observed that by watermarking and publishing the photo on its Facebook page, the club had turned his image into commercial property without his permission.
“The petitioner’s right to privacy was infringed,” said the court. The court noted that the photograph had been used “with the intent to advertise and attract customers” and without Muthama’s authority.
Clubs have for years shared images of people dressed in skimpy outfits, or caught in compromising positions, or in places they are not supposed to be.
Photo credit: Shutterstock
The court awarded him Sh1 million in damages and issued a permanent injunction restraining the club from using his image again for promotional purposes. The club was also ordered to pay Sh200,000 in costs.
In yet another case against the establishment, the court awarded Philip Nzyuko Musya a similar amount after finding that his photographs were taken without his consent and published on the club’s Facebook page.
“In this case, it is clear that images of the Petitioner (Musya) were taken without his consent and published, thus putting his social life out in public, which unnecessarily exposed him. Failure of the Respondent (Hornbill) to file a response meant that the evidence presented remained unchallenged. I thus find that his right to privacy was infringed,” said the court.
While the amount may appear high for a single photo, the court referenced similar cases where individuals had successfully sued over unauthorized image use.
In Wanjiru vs Machakos University (2022), the court awarded the petitioner- Wanjiru- Sh700,000 for the unauthorised use of a student’s image on a billboard.
In Wangechi Waweru Mwende vs Tecno Mobile (2020), the award was Sh500,000 on similar grounds.
In recent times, clubs have been hiring photographers to capture candid shots of revellers enjoying themselves as part of their marketing strategy, using the images to showcase vibrant nightlife and attract new patrons.
However, some partygoers feel this practice is a breach of privacy, arguing that not everyone wants their night out broadcast on social media.
Another dispute emerged in Nairobi, reigniting a debate over where nightlife marketing crosses the line on personal privacy.
Perpetual Wanjiku visited Casa Vera Lounge in Nairobi; she did not expect her night out to end up online. Days later, she found her image circulating on Instagram, Facebook, and WhatsApp, shared from the club’s official pages under the caption: “About last night with pskratch kenya & @giftthesimpleg.”
Kenyan lounges are paying the price for using patrons’ photos without permission.
Photo credit: Shitterstock
Wanjiku said she was never permitted to have her photo taken or used to promote the lounge. She filed a complaint with the Office of the Data Protection Commissioner (ODPC), accusing Casa Vera of using her image for commercial purposes without consent.
In her complaint, she argued that the club’s actions amounted to a breach of privacy since her image was used to advertise the establishment.
She also said that despite sending a demand letter dated October 16, 2022, seeking an apology and removal of the image, she never received a response.
Investigations by the ODPC confirmed that the image posted by the lounge matched the one she provided.
She asked the Data Commissioner to declare that the actions of Casa Vera violated her right to privacy under Article 31 of the Constitution and sought compensation of Sh5 million.
Casa Vera said in its response that it had a visible disclaimer at the entrance, informing patrons that by entering the premises that they had waived any claims related to photography or recordings.
The lounge said its photographers always sought consent before taking pictures and that the complainant had posed willingly. According to the club, the post was deleted immediately after Wanjiku raised concerns.
The Data Commissioner found that the privacy notice was not clearly visible to customers, being placed behind food vendors near the entrance, and this did not amount to sufficient notice under the law.
The ruling found that Casa Vera’s disclaimer did not meet the legal requirements for consent, as it failed to explain the purpose of data collection, how the images would be used, or the rights of patrons.
The Data Commissioner also held that the photographer’s affidavit, claiming that Wanjiku “did not express any reservations,” was not sufficient proof of valid consent.
In her determination, Data Commissioner Immaculate Kassait held that Casa Vera violated Wanjiku’s rights under Section 26 of the Data Protection Act by failing to obtain proper consent before using her image.
Although the Commissioner declined to award compensation, citing the lounge’s removal of the image after the complaint, she issued an enforcement notice against Casa Vera for breaching data protection laws.
