exposes brands to lawsuits, reputational risk, and financial loss.
Case studies from Court
Recent court decisions show how Kenyan courts are addressing disputes in the digital marketing space.
In Nonini v. Mutinda & Syinix Electronics( 2023), the High Court addressed the unauthorized use of music in online promotion. Kenyan rapper Hubert Nakitare, better known as Nonini, sued influencer Brian Mutinda and electronics company Syinix for embedding his hit song“ We Kamu” in a promotional skit. The court found this to be copyright infringement and awarded Ksh 4 million in damages.
The decision was a wake-up call: what may seem like harmless borrowing of trending content can carry a hefty price tag.
A year later, in Mwonga & 4 Others v. Ogega & Another( 2024), the focus shifted from music to image rights. Five young advocates discovered that their graduation photos had been lifted from the internet and used in advertisements by a private training institute. The images appeared on the institution’ s social media pages, brochures, and even billboards, all without consent. The High Court held that this was not just a breach of intellectual property but also a violation of constitutional rights to dignity and privacy under Articles 28 and 31 of the Constitution. Each petitioner was awarded Ksh 280,000, and the respondents were permanently restrained from further use of the images.
The ruling underscored a principle: even images freely circulating online are not free for commercial exploitation without permission.
These cases demonstrate a growing judicial willingness to protect creators and individuals from digital exploitation. They also highlight that Intellectual Property disputes in marketing cut across copyright, privacy, and data protection law.
These cases, show that the risks of unauthorized use extend beyond legal liability to reputational fallout. In the age of social media, creators have platforms to call out misuse in real time, often triggering public backlash against brands long before the courts weigh in. It is also a clear reminder that obtaining a creator’ s consent is not a courtesy but a legal and commercial necessity.
Conclusion
Kenya’ s digital economy is entering a new era where creativity and law are inseparable. The courts have made it clear that unauthorized use of music, images, or personal data will not be tolerated.
For brands, the lesson is simple: creativity may fuel marketing, but intellectual property law is the engine that keeps it running. Respecting intellectual property by seeking licenses, obtaining consent, and protecting one’ s own assets is not just a compliance issue. It is a strategic advantage in building credibility, protecting reputation, and ensuring longterm success in Kenya’ s evolving digital marketing space.
Victoria Gitari, is an Advocate & Associate, Gitonga & Tollo Advocates, Nairobi, a member firm of Alliott Global Alliance. You can commune with her via mail at: Vmg @ nairobi-legal. co. ke.