Contents

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

Summary

Caroline Wambui Ndirangu sued Nation Media Group for using her image without consent. Nation Media denied the violation and challenged the court's jurisdiction. The court dismissed the challenge, stating that the Data Protection Act was not operational when the cause of action arose, so Ndirangu appropriately sought relief in the High Court.

Facts

The applicant, Caroline Wambui Ndirangu, claimed that from 2013 to 2020, Nation Media Group Limited used a picture of her in its telecommunication-based commercial articles without her consent, breaching her image rights.

She acknowledged authorizing the use of her image on beadwork for commercial use but stated that this consent did not extend to the use of her image on a rooftop around a satellite.

The applicant claimed that the defendants violated her image and data rights and sought several declarations, including that the commercial use of her images breached her rights, general damages, and costs of the suit.

Nation Media Group Limited admitted to publishing telecommunication-based articles in 2013 and using a picture allegedly depicting the plaintiff. However, they denied violating or breaching the plaintiff’s images and data rights.

The defendants also challenged the court’s jurisdiction, arguing that the suit was filed in disregard of the Fair Administrative Action Act and the Data Protection Act. They argued that the suit should be dismissed with costs. The defendants relied on the doctrine of exhaustion, arguing that the plaintiff should have first sought redress through the mechanisms provided under the Data Protection Act before approaching the court. They cited several cases to support their argument that statutory procedures for redress should be strictly followed and that alternative remedies through statutory law should be pursued first.

The court framed the issues for determination as whether it had jurisdiction, considering Section 64 of the Data Protection Act 2019, and who should bear the costs of the Preliminary Objection.

The court acknowledged the doctrine of exhaustion, which generally requires that alternative statutory remedies be pursued before approaching the High Court. However, the court noted that the Data Protection Act was enacted in 2019 but only operationalized in 2021, after the cause of action arose (2013-2020) and after the suit was filed.

The court found that at the time the cause of action arose and the suit was filed, the mechanisms under the Data Protection Act were not in place, meaning that the plaintiff had no alternative remedy other than to seek relief from the High Court.

The court held that it would not be just to fault the plaintiff for the failures of other agencies to operationalize the Data Protection Act.

• Legal Provisions Reviewed

Holding