Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The Petitioner Dennis Ndururi challenged Twiga Foods and IBM for the illegal global use of his image. The Employment and Labour Relations Court, Nairobi, struck out the petition on 14 March 2025, finding Ndururi failed to exhaust the statutory appeal mechanism provided in Section 64 of the Data Protection Act.

Facts

The Petitioner, Dennis Gitonga Ndururi, was employed by Twiga Foods Limited (2nd Respondent) as a sales representative for four months, from 01 April 2018 to 30 July 2018. Twiga Foods had partnered with IBM East Africa Ltd (3rd Respondent) in a commercial venture.

Ndururi alleged that on 12 April 2018, representatives took his picture while he was offloading farm produce, after being told to be neat and in uniform for an administrative round. Unknown to him, this picture was forwarded to IBM, posted on Flickr as “IBM & TWIGA pictures 23,” and given a licensable badge, allowing third parties to use it commercially.

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Access the original ODPC Ruling here | Dennis Gitonga Ndururi vs. Twiga Foods Ltd - ODPC Complaints No. 289 of 2024

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Twiga and IBM further partnered with CNN, using the image in a 16-page advertisement feature on CNN’s website, depicting him as an employee, and this image was extensively marketed globally by agents, partners, and third parties across platforms like Tik Tok, X, Facebook, and LinkedIn.

Ndururi claimed the image was obtained illegally through misrepresentation and undue influence and contravened his employment contract and constitutional rights to privacy, dignity, and property. He contended he was racially profiled, lost control of his image, and was made a global brand ambassador, causing psychological trauma, loss of dignity, financial loss, and security risk.

After lodging a complaint (ODPC Complaint No. 289 of 2024) against the respondents, the Office of the Data Protection Commissioner (ODPC, 1st Respondent) delivered a decision dated 13 May 2024, which Ndururi claimed was per-incuriam, denying him a fair administrative action and hearing. He filed the current petition seeking, among other orders, a temporary and mandatory injunction against the use and storage of his image, and exemption from the statutory appellate remedies provided under Section 64 of the Data Protection Act.

The Respondents raised preliminary objections and grounds of opposition:

1. The 3rd Respondent (IBM) argued the court lacked jurisdiction because there was no employer-employee relationship between IBM and the petitioner. The 2nd Respondent (Twiga) argued the cause of action arose from the ODPC's decision dated 14 May 2024, not from a contract of employment, meaning the Employment and Labour Relations Court lacked jurisdiction.
2. Both the 2nd and 3rd Respondents argued the petition was an abuse of court process because it was a "cleverly disguised appeal" against the ODPC's decision, filed in clear disregard of the mandatory statutory appeal mechanism provided in Section 64 of the Data Protection Act, which requires appeal to the High Court.
3. The 3rd Respondent argued the petition was time barred under the three-year statutory limitation of Section 89 of the Employment Act. The 2nd Respondent also claimed any cause of action arising from the employment contract was statute barred under Section 90 of the Employment Act.