10.
According to the applicants section 56(5) of the Data Protection Act, is couched in mandatory terms
that the respondent shall investigate and conclude its investigations ninety (90) days.
11.
The complaint herein was lodged with the respondent on July 20, 2022. It took the respondent about 6
months to investigate and conclude the complaint which was outside its statutory timelines. According
to the applicants the respondent ought to have concluded investigation and render it’s determination
by October 19, 2022.
12.
The applicants further submitted that the respondent’s jurisdiction came to an end by way of euxion
of time citing the case of Joint Venture of Lex Oilfield Solutions Ltd & CFAO Kenya Ltd v Public
Procurement Administrative Review Board & 4 others (Civil Appeal 022 of2022) [2022] KECA 424
(KLR).
The Respondents and the Interested Parties’ Case:
13.
In response to the motion the respondent led a replying adavit dated March 15, 2023 and written
submission dated March 29, 2023.On her part, the 1st interested party led a replying adavit dated
March 16, 2023 and written submissions dated March 31, 2023 while the 2nd interested party led a
replying adavit dated March 15, 2023 and written submissions dated March 29, 2023.
The Respondent:
14.
The ODPC is a regulatory oce established pursuant to section 5 of the Act. The ODPC is mandated
with regulating personal data processing, ensuring that the processing of a data subject’s personal data
is guided by the principles set forth in section 25 of the Act, protecting individuals’ privacy, establishing
a legal and institutional mechanism to protect personal data, and providing data subjects with rights
and remedies to protect their personal data from processing that is not in accordance with the Act.
15.
In July 2022, the ODPC received a complaint from the applicants against its the interested parties
who were its ex-employees. The basis of the complaint is that the 1st interested party allegedly sent
condential information from the 3rd applicant to her personal email as well as to a third party, without
consent from the data subjects and the applicants.
16.
It was alleged that some of the documents shared between the Interested parties included court
documents such as pleadings and supporting documents, applications, adavits, submissions, and
legal opinions, bank statements, correspondences, invoices, and subscription emails.
17.
The respondent at the inception of the matter noted that a large majority of the complaint did not
contain any personal data of the applicants but instead were documents relating to the 3rd applicants
corporate (not natural persons) clients who on the face of it were not aware that the 3rd applicant was
acting on their behalf.
18.
The ODPC upon satisfaction that the applicants had adequately ventilated their complaint and the
interested parties given a chance to defend the allegations and by virtue of considering the complaint
and documents presented it dismissed the complaint on the grounds that the documents provided
formed part of the public record, and the parties referred to in some of the documents were companies
and not natural persons who are the data subjects specically protected under the Act.
19.
The respondent also found that the complainants did not demonstrate that their own personal data
had been infringed and did not show that they had the authority to represent any other data subjects
referred to in the complaint.
kenyalaw.org/caselaw/cases/view/258092/
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