NAIROBI: The High Court has struck out a petition filed by a Samburu woman seeking compensation from the German Embassy for illegally using her photograph to market Lake Turkana Festival.
Talaso Lepalat through her brother, Lepalo Gideon, had claimed that her photograph has been used since 2012 to market Lake Turkana Festival held in Loiyangalani village, Marsabit County.
She claimed that the festival, which is sponsored by the German Embassy, had flouted her right to privacy. She sought compensation for violations of her right to privacy and for physical, emotional and psychological torture, caused by the unlawful actions of the Embassy.
“She and her family have suffered a lot of pain, humiliation and embarrassment from her Samburu Community, who have shunned her as the disrespectful one,” the court heard.
However, in October 28, 2014, Attorney General and the National Cohesion and Integration Commission, filed a preliminary objection seeking to have the suit struck out by the court on grounds that the embassy is immune to law suits. The Interested parties argued that the Vienna Convention of Diplomatic Relations, 1961 and the Privileges and Immunities Act, Cap 179 read together granted immunity to all diplomatic missions in Kenya.
They noted that the diplomatic missions can only be subjected to proceedings in the Kenyan courts when their immunity is expressly waived.
They also noted that Lepalat could still pursue other persons who may have allegedly violated her rights by publishing her photograph in festival brochures without her consent.
COMMERCIAL ACTIVITY
In response, Lepalat though lawyer Ham Langat argued that the Lake Turkana Film Festival was a purely commercial activity and hence not immune from the court jurisdiction.
The petitioner further urged the court to restrict the immunity of the Embassy and noted that absolute immunity would not advance interests of justice. She asked the court to overrule the objection.
In his finding, Justice Isaac Lenaola said the rule of state immunity prevents courts from exercising their adjudication and enforcement of jurisdiction in disputes where a foreign state is directly or indirectly named.
