Contents

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

Summary

Hellen Muthoni sued Solpia Kenya for unauthorised commercial image use, alleging privacy and constitutional rights violations. Solpia cited admiration and implied consent from a public post. The High Court declined jurisdiction, ruling Muthoni failed to exhaust administrative remedies under the Data Protection Act, striking out the petition.

Facts

Hellen Muthoni, a public figure and media personality, claimed that Solpia Kenya Limited (trading as Sista Kenya) violated her right to privacy and dignity (Articles 31 and 28 of the Constitution) by using her image for commercial advertising without her consent. She had posted a photo of her unique hairstyle on her public Instagram and Facebook accounts in October 2020 as a way of engaging with followers, having invested heavily in her image and social media presence for commercial exploitation and brand endorsements. Solpia Kenya then "reposted" this image on its social media pages to market its hair products, gaining commercially by leveraging her popularity.

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Link to the Original Ruling | Hellen Muthoni vs. Solpia Kenya Ltd (t/a Sistar Kenya) - ODPC Complaint No. 1963 of 2023

Link to the Appeal | Hellen Muthoni vs. Solpia Kenya Limited t/a Sista Kenya (Civil Appeal E164 & 178 of 2024 (Consolidated)) [2025] KEHC 34 (KLR) (Civ)

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The appellant contended that this unauthorised use led the public, her followers, and her employer (Royal Media Services) to believe she had endorsed Solpia's products or was modelling for them, potentially contravening her employer's advertising policies and jeopardising her job. She further alleged that this conduct amounted to forced labour, servitude (Article 30), and torture (Article 29) due to the mental and psychological distress caused by the post remaining online despite demands to remove it. Muthoni also asserted that the respondent violated her copyrights (Article 10 of the Constitution and Sections 33, 35 of the Copyright Act) as she was the author and owner of the photograph. She sought various declarations of rights violations and significant compensation.

Solpia Kenya opposed the petition, denying any violation of Muthoni's rights or fundamental freedoms. They explained that Muthoni's hair was styled by John Mwangi, who used their products. After Muthoni posted the photo and tagged John Mwangi, he, in turn, tagged Solpia Kenya. The respondent claimed it merely made a "repost" of the image, which is a standard social media feature, and added brief comments, primarily out of "admiration of the artistic expression" of the hair artist. They argued that they did not interfere with, add to, or edit the photo.

Solpia Kenya maintained that the repost was not an advertisement or endorsement by Muthoni and that her public posting and tagging of others implied consent for others to view and repost, thereby enhancing her popularity. They denied any commercial gain from the repost, stating that social media alone doesn't guarantee sales. The respondent also challenged the High Court's jurisdiction, suggesting the claim belonged to the Employment and Labour Relations Court or a Civil Court. Furthermore, they disputed the copyright infringement claim, questioning if Muthoni was indeed the sole author given her hands were visible in the photo.

The High Court, presided over by AC Mrima, J, identified the central issue as whether Muthoni's privacy rights were infringed, noting that other alleged breaches were consequent upon this. The court affirmed that Article 31 of the Constitution guarantees the right to privacy and that the Data Protection Act, No. 24 of 2019, was enacted to give effect to Article 31(c) and (d), regulating personal data processing and establishing the Office of the Data Protection Commissioner.

The court found that Parliament deliberately designed the Data Protection Act to make the Data Commissioner the "first port of call" for claims arising from infringements of Article 31(c) and (d) of the Constitution. While the Data Commissioner has the power to investigate complaints, determine infringements of privacy rights, and order compensation, it lacks the jurisdiction to interpret the Constitution, which is an exclusive function of the High Court.

Crucially, the court found that the doctrine of exhaustion of administrative remedies applied in this matter. This doctrine requires litigants to pursue available remedies before administrative agencies (like the Data Commissioner) before approaching the courts. The High Court reviewed several exceptions to this doctrine, such as cases where exhaustion wouldn't serve constitutional values or where claimed constitutional violations are not mere "bootstraps". However, the court concluded that the petitioner "did not demonstrate any of the exceptions to the doctrine of exhaustion". The Data Act fully provided for the dispute based on Article 31 and the remedies sought.

• Legal Provisions Reviewed

Holding