Employees who were interested in participating were free to and in order to do
so, were advised to sign for a new uniform. In addition all Employees were
informed that the photo shoot would take place while they were performing their
duties and the still photos and audiovisual images would appear in the
Defendant's in-house magazine; the SAFAL magazine, its Year Planner as well as in
the country's national media including television. DW1 Mr Ojambo John also
testified that DW3 briefed all staff members and the Plaintiff was in attendance.
The briefing informed the members about what would happen and also informed
them that it was voluntary and all interested participants were advised to come
for new uniforms in order to be part of the photo. The Plaintiff was wearing a new
uniform which he had signed for in order to be part of the photo shooting.
Evidence was adduced of the Plaintiff wearing a new uniform which was different
from his usual uniform in which he was operating the machine. The Plaintiff did
not deny this. In addition the Plaintiff stated that he knew that his image has been
taken because there was a photographer. He also stated that he did not inform
anyone that he was not interested in participating in the event. DW2 Mr Wilfred
Mayende testified that the Plaintiff like all other Employees joined the group
receiving uniforms so that they could participate in the photo shoot.
The evidence shows that PW1 consented to the use of his image by participating
in the event. He was aware that it would appear in various media and he was
aware that it was a voluntary participation which required obtaining a new
uniform which he did obtain. He participated and clearly indicates that consent
and authorisation was given by the Plaintiff and obtained by the Defendant. The
Defendant obtained sufficient consent and authority from the Plaintiff and the
Plaintiff has failed to prove otherwise. The use of the Plaintiff’s image was done
after obtaining consent and the Plaintiff is estopped from denying that he gave
consent. The Plaintiff is an Employee of the Defendant Company and has a
fiduciary duty as it is out of the employment relationship to promote the
Employer’s business.
The Defendant’s Counsel further maintains that the Plaintiff cannot claim to have
suffered any infringement as the photos were used for the promotion of the
Decision of Hon. Mr. Justice Christopher Madrama
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