Contents

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

Summary

Steve Sande complained that Nyati Savings and Credit unlawfully used his image and likeness on promotional posters for their 'Jiendeleze loan' product, for commercial gain, without his consent. Nyati Savings failed to respond to the complaint,. The ODPC found Nyati Savings liable for unauthorized commercial use, and ordered them to pay KES 500,000/- compensation.

Facts

The Complainant alleged that the Respondent, Nyati Savings and Credit Cooperative Society Limited, unlawfully used his image and likeness on promotional posters for a loan product named 'Jiendeleze loan'. The Complainant stated that the Respondent published his image and likeness in posters across Facebook, Instagram, and Twitter on multiple dates between October and December 2022. He asserted that these posters were part of a commercial campaign introducing the 'Jiendeleze loan' product. The Complainant maintained that these publications falsely suggested he was an official partner or brand ambassador of the Respondent, which he alleged misled the public and damaged his reputation. He emphasized that he had not consented to the use of his image for marketing purposes and that he had never submitted his photographs to the Respondent for use in advertising.

The Complainant argued that the Respondent exploited his likeness for financial gain by promoting its loan product and contended that his intellectual property and personality rights were misused through the unauthorized publications. Furthermore, the Complainant asserted that he was neither an employee of the Sacco nor had any relationship with it. He came to know of the misuse when a friend shared an X (formerly Twitter) post in which the Sacco had used his image to advertise their loan program. The Complainant sought compensation and an order restraining the Respondent from publishing and/or using his image and likeness in any way.

The Office notified the Respondent of the complaint on 28th July 2025, requesting information including the lawful basis relied upon to use the Complainant's image for commercial purposes. However, as at the date of the determination, the Respondent failed, refused, or neglected to respond to the Notification of Complaint. Consequently, the allegations leveled against the Respondent remained uncontroverted.

The ODPC focused its investigation on two issues: whether the Respondent obtained express consent to process the Complainant’s personal data for commercial purposes, and whether the Complainant was entitled to remedies.

1. Consent for Commercial Purposes: The ODPC noted that for commercial purposes, a data controller shall be considered to use personal data where it is used to advance commercial or economic interests. The Complainant provided evidence showing that the Respondent used his image on a poster ostensibly introducing the 'Jiendeleze loan' product, which confirmed the use was to advance commercial purposes, contrary to Section 37 of the Act. The law requires a data controller not to process personal data unless the data subject consents to the processing. The ODPC found that because the Respondent did not respond or furnish any evidence, the Office concluded that the Respondent did not obtain express consent from the Complainant to process personal data for commercial purposes.
2. Entitlement to Remedies: Having established that the Respondent processed the Complainant's image for commercial purposes without the requisite consent, the ODPC found that there was a contravention of the Act. A person who suffers damage by reason of such contravention is entitled to compensation for that damage, which, according to the Act, includes financial loss and damage not involving financial loss, including distress. Regulation 14(3)(e) of the Enforcement Regulations provides that the Data Commissioner may make an order for compensation.

• Legal Provisions Reviewed

Holding

In the final determination dated 3rd October 2025, the Data Commissioner made the following orders:

1. The Respondent (Nyati Savings and Credit Cooperative Society Limited) was hereby found liable for use of the Complainant's image for commercial purposes without consent.