Contents

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

Summary

Moja Expressway appealed the KES 500,000.00 compensation award for using Cyrus Mwaniki's image commercially after he resigned. The High Court upheld the Data Commissioner's finding that continued data exploitation without fresh consent, following employment termination, violated his rights. The compensation was deemed reasonable.

Facts

The case, Moja Expressway Company vs. Cyrus Mwaniki Ndungu, arose from a complaint lodged by Cyrus Mwaniki Ndungu against Moja Expressway with the ODPC regarding the continued use of his personal image after his employment ended. Moja Expressway acknowledged that the respondent’s image had been used with consent during his employment but contended that no formal withdrawal of consent was made after termination. The company also noted that the videos were deleted once the complaint was raised. The Data Protection Commissioner, Immaculate Kassait, determined on 15th May 2024 that continued use of the respondent’s image post-employment required fresh consent. Given the commercial nature of the use, the Commissioner awarded Mr. Mwaniki Kshs. 500,000.00 in compensation. Moja Expressway appealed, contesting both the requirement for renewed consent and the compensation, arguing that no damage or loss had been demonstrated.

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Link to original ODPC Ruling | Cyrus Mwaniki Ndungu vs. Moja Expressway Company - ODPC Complaint No. 0264 of 2024

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Moja Expressway appealed this determination to the High Court.

The High Court agreed with the Data Protection Commissioner, holding that the data had been captured within the context of employment, and once the employment relationship terminated, the basis for the continued use of the data was lost.

The court found that there was a need to obtain a fresh consent for the continued exploitation of the data, and using the material without this fresh consent amounted to a violation. Regarding the compensation, the court found justification for the award based on the commercial exploitation of the respondent's data after he left employment, noting that since he was no longer being remunerated, the continued exploitation for free was unjust.

The High Court reviewed the award in light of caselaw concerning data privacy violations, where injury is often neither physical nor financial, covering non-quantifiable feelings such as frustration, anxiety, and mental distress. The court ultimately found that it had not been demonstrated that the award of Kshs. 500,000.00 made by the Data Protection Commissioner was unreasonable and unfair. Consequently, the appeal was dismissed, and the respondent was awarded the costs of the appeal.

• Laws Reviewed by the Court:

Holding

The High Court (HC) ruling, delivered by Hon. Justice W. Musyoka made the following determinations:

• The HC agreed with the Data Protection Commissioner's finding that the data (Mr. Mwaniki's image) had been captured within the context of employment, and once the employment relationship terminated (Mr. Mwaniki resigned on 17th November 2022), the basis for the continued use of that data was lost.