NICK ONGERI MAIRURA VERSUS KABRAS SUGAR RUGBY FOOTBALL CLUB & KABRAS RUGBY CLUB
1. Introduction
This complaint concerns Nick Ongeri Mairura’s grievance against Kabras Sugar Rugby Football Club and Kabras Rugby Club on the commercial use of his image to promote a rugby match on social media without his consent. This action is in conflict with the Data Protection Act, 2019.
Table of Contents
2. Nature of Complaint
The Respondents published a poster bearing the Complainant’s photograph on their social media platforms to advertise a rugby match scheduled for 18th February 2023 between KCB Rugby Club and Kabras Sugar Rugby Club. The Complainant’s image was used without his consent, and the publication erroneously portrayed him as a player for KCB Rugby Club when he had ceased playing for them and was playing for Strathmore University Rugby Club, causing him to receive negative criticism and to be shunned by his peers.
3. Analysis of Evidence
Complainant’s Position
- On 14th February 2023, the Respondents published a poster bearing his photograph on Facebook and Instagram
- The photograph was used to market the rugby match scheduled for 18th February 2023 between KCB Rugby Club and Kabras Sugar Rugby Club
- At the time of publication, he had ceased playing for KCB and was playing for Strathmore University Rugby Club
- Just 3 days before the unlawful publication, his team (Strathmore) played against the Respondents
- He was portrayed as being disloyal and untrustworthy to his then team
- Issued a demand letter dated 17th February 2023 which was ignored
Respondents’ Defense
- The 1st Respondent (Kabras Sugar Rugby Football Club) is a non-existent entity
- The 2nd Respondent (Kabras Rugby Club) is the duly registered entity operating the social media pages
- Contested the joinder to the complaint
- Neither Respondent provided a substantive response to the allegations
4. Issues for Determination
- Whether the complaint is defeated by misjoinder
- Whether the Complainant is identifiable from the publication
- Whether the Complainant’s personal data was lawfully processed
- Whether there was a violation of the Complainant’s rights
- Whether the Complainant is entitled to any remedy under the Act
5. Final Determination
The Data Commissioner found:
- The 2nd Respondent published the Complainant’s image without consent for commercial promotion of the match.
- The publication erroneously portrayed the Complainant as a player for a club he had ceased playing for, causing reputational harm.
- The 1st Respondent is a non-existent entity and the complaint against it is dismissed.
- The 2nd Respondent is liable for violation of the Complainant’s rights under the Act.
Orders:
- Compensation of Ksh 750,000 to the Complainant.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Commercial Use of Images in Sports Marketing
- Establishes that using player images to promote matches constitutes commercial use under Section 37
- Consent is required even for promotional materials in sports
Right to be Informed and Reputational Harm
- Reinforces the obligation to inform data subjects of the use of their personal data
- Unauthorized use of images causing reputational harm constitutes a violation
Broader Impact: Beyond the immediate facts, this ruling challenges a deeply embedded culture in sports marketing where player images are presumed to be free for promotional use. It forces clubs to confront a fundamental shift in perspective: the commercial value of an athlete’s image is not a club asset but a personal right, requiring the same respect and consent as any other form of personal data.