Charity groups in court battle over use of children's images to solicit donor funding

A legal battle at the Kwale Law Courts is set to expose the tricks used by some local charitable organisations to raise funds from abroad, as the fate of a school in the county hangs in the balance.

In the case, two complainants have sued a Belgian investor, accusing her of using their charity, which helps the poor and young mothers in Kwale, to enrich herself.

Ms Sarah Were and Jan Francois are seeking the closure of Tabasamu School, which they claim is being run by a Belgian national, Ann De Bruyn, using funds donated to their charity.

They allege that the foreigner has used deception to profit from overseas donor funds to run her businesses.

Through a lawyer, Mogaka Elkana, Ms Were and Mr Francois have alleged that Ms Bruyn has been posing as a member of their Kebene Children's Home and Group & Rotaract Global to obtain funds from the public and unjustly enrich herself.

Children’s image rights

 “Ms Bruyn has been using images of the children that are at Kebene’s custody without the children’s image rights, to fraudulently obtain funds from investors to unjustly enrich herself and unlawful interference with the organisation’s children's economic interest,” claimed Mr Mogaka.

According to the complainants, Ms Bruyn has been using the children's images without the consent of the children's home, who are the guardians of the minors, causing harm and exploitation to the young ones.

“Unless she is compelled to cease the usage of the children’s images to obtain funds from investors and impersonate Kabene, then there is a likelihood of child abuse, injury and exploitation to the children,” they say in their submission.

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Court documents show Ms Were is the manager of Kebene Children's Home and Group & Rotaract Global, a small-scale project that provides shelter to street children and orphans in Kenya as a Children's Home regulated by the Children's Act.

The records further show that Ms Bruyn became part of the organisation as a volunteer on or about July 2022, when she offered to sponsor some of the children.

The court heard that in the same year, Ms Bruyn started talking to the organisation’s staff, inciting them against the children’s home and taking photographs of the children.

Solicit money

Ms Were and Mr Francois say they later learnt that the Belgian had been using the children's images she took when she visited the premises to solicit money from investors to fund the opening of her school, Tabasamu.

“We later on learnt that she has incited three of our staff members to leave the organisation, and steal money that was meant for groceries and the feeding of the children,” they claimed.

They also alleged that Ms Bruyn went ahead and opened her institution with the three staff members she poached from the children’s home using the royalties she got from the children's photograph that she does not have a copyright to.

“She opened the learning institution with malicious intent to unjustly enrich herself from investors and well-wishers and not to help children,” they told the court.

They lament that despite the Belgian being made aware of her actions and asked to return the children's images and stop obtaining funds in the name of the children’s home, she has ignored and, or refused to do so.

In addition to the lawsuit, Ms Were and Mr Francois have also written to the Belgian Embassy regarding the issue.

According to the letter, the school was to financially support Kenyan citizens by covering housing, student fees, and other welfare and education-related expenses, distributing food parcels and providing first aid and hygiene support.

Make profit

However, contrary to these objectives, it is alleged that Tabasamu has registered a business in Kenya under the Business Name Mwana Tabasamu Christina Academy to make a profit.

“It is without doubt that Tabasamu registered in Belgium is disguised as a charitable organisation to solicit funds from Belgian citizens to advance private business interests in Diani, Kenya through Mwana Tabasamu Christina Academy,” said the letter.

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However, in her defence, Ms Bruyn said that she became a sponsor of the children's home in July 2021 by assisting a young mother before being illegally expelled from the organisation a year later due to her disagreement with the founder, Pasci Priscen.

She explained that things escalated in July 2022 when she raised concerns about the utilisation of a 250 Euro donation (Sh28,905 by the current exchange rates) - received from her friends in Belgium, who requested pictures of what she had purchased for the children.

"However, Priscen became upset and insisted that I transfer the money to the children's home's bank account, which I complied with. I was dissatisfied with his response to my concerns since the 250 Euro donation from my Belgian friends was not used for its intended purpose," she stated.

Ms Bruyn refuted all accusations against her. She acknowledged taking pictures of the children but explained that she did so after obtaining permission from the organisation's founder.

“Priscen allowed volunteers and sponsors to take unlimited photographs to aid in sourcing donations. The unauthorised photography of children is inaccurately claimed to occur when a sponsor or volunteer departs or raises concerns about donation usage within the organisation,” she stated through Chimera, Kamotho Advocates LLP.

She refuted any involvement in using children's images for fundraising or influencing investors, asserting that she has no connections with anyone beyond her family and close friends who voluntarily ceased supporting the organisation.

The Belgian emphasised that she is merely one of the sponsors of Tabasamu School, not an owner as alleged and that the school's owners have been compliant with the Ministry of Education since 2023, a fact known to county education officials.

“Tabasamu School sponsors and volunteers have no links to the children’s home, and if any sponsor withdrew from it (the children’s home), then that was of their own volition. I neither opened the school nor received royalties using the children's photographs. The applicants' allegation is unfounded,” she said.

She described the allegations against her as malicious. She pointed out that she shared on social media photos of her regular visits to the organisation when she was still its sponsor or volunteer.

She clarified that she registered Tabasamu VZW, a charitable organisation in Belgium, in September 2022 and that none of its board members have links to the children's home.

"Tabasamu VZW is not a school but a Belgian charitable organisation registered to raise funds for needy children," she said.

The complainants also sued the Office of the Director of Public Prosecutions and the Officer Commanding Diani Police Station.

The two complainants also want the police ordered to commence investigations into the operations of Tabasamu School and tender its findings in court.

Illegal operations

They also want the ODPP granted 30 days' leave to make its recommendations into the alleged crimes and illegal operations in the school.

Besides this, the complainants want Ms Bruyn and the school compelled to take down the images of the children under the care of Kebene Children's Home and Group & Rotaract Global from their school website, social media pages and or any other form of digital and or print media pending inter-partes hearing and final disposition of the case.

“Ms Bruyn is not entitled to royalties in the photograph, as she does not have the copyright to use the images, and more so using images of Kenyan children in foreign countries in a bid to solicit funds for self-enrichment,” they said.

They have also alleged that the Belgian has gone ahead and posted many untruths and lies about them to undermine their name through her Facebook page and other channels, causing emotional damage to the children hosted in the Children’s home premises.

Also, they allege that Ms Bruyn has reached out to their sponsors and or donors via social media and damaged their name, causing them to lose many donors.

They claim to have suffered loss and damages in terms of finances as investors say to have already sponsored the school through the government, while the school is not a member of the Kebene Children's Home and Group & Rotaract Global.

“Her conduct is unlawful and constitutes unjust enrichment of herself and unlawful interference with our children's economic interest. The urgency of this application is occasioned by the fact that there are children whose image rights have been injured and are being exploited for monetary gain without the consent of the children's guardian,” said Ms Were.

The court ordered the parties to file and exchange all documents within 14 days.

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