CYRILLA: Global Digital Rights Law

Relevant provisions of the Law 56. Complaints to the Data Commissioner A complaint made to the Data Commissioner shall be investigated and concluded within ninety days. Held 1. A preliminary objection was a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claimed to be a preliminary objection, and yet it bore factual aspects calling for proof, or sought to adduce evidence for its authentication, was not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. 2. An issue of locus standi raised a point of law that touched on the capacity to institute a suit, and it should be resolved at the earliest opportunity. Locus standi was the right to appear and be heard in court or other proceedings. If a party was found to have no locus standi, then it meant the person could not be heard even on whether or not he had a case worth listening to. If the court was to nd that the applicant had no locus standi, then the applicant could not be heard and that point alone may dispose of the suit. 3. The applicants had the necessary locus standi to lodge and sucient interest in these proceedings given that they were intertwined in such an intricate manner as a result of the nature and form of a law rm and the client advocate duciary relationship. They owed a duty of care towards one another when it came to the issue of data privacy. The preliminary objection was dismissed. 4. Jurisdiction was everything, it was what gave a court or a tribunal the power, authority and legitimacy to entertain a matter before it. A decision made by a court of law without jurisdiction was a nullity ab initio (from the beginning), and such a decision was amenable to setting aside ex debito justitiae (as a matter of right). 5. As at the time of determination, January 6, 2022, the period within which the respondent had to investigate and determine the complaint had already lapsed. Pursuant to the provisions of section 56(5) of the () the ODPC had a time-bound jurisdiction to investigate and determine the complaint. When the 90 days’ period ended, the respondent jurisdiction also came to an end by way euxion of time. 6. Courts and tribunals could not out the timelines expressly provided for in law. The moment the 90 days ended, the respondent’s jurisdiction also lapsed. The nding that was rendered outside time was without jurisdiction and therefore a nullity, bereft of any force of law. 7. Unlike the traditional Kenyan dispute resolution mechanisms like the court, the ODPC did not rely on the evidence produced by parties in making its decision. The ODPC had investigatory powers call for or collect and use more evidence before arriving at a nding. 8. The respondent admitted that its nding was rendered out of time. The respondent however blamed the applicant for the delay in keeping time. Two wrongs could not make a right in law. The respondent could not be heard to blame the applicant since it lacked the legal authority enlarge time. 9. Where the or a statute had provided or set a strict time for the delivery of a judgment or a nding then the High Court could not be called upon to apply a purposive interpretation of the law to enlarge time. Such an approach would be an aront of article 10 of the ; an aront to the rule of law. 10. Enlarging time in such a terrain would most prejudice and or disadvantage one or the other parties in the dispute. The respondent’s jurisdiction lapsed on the ninetieth day from the day the complaint was lodged. The High Court lacked the Constitutional power to breathe life into a nding that had been arrived at ultra vires under article 165 of the . 11. The ODPC acted procedurally within the principles of fair hearing in granting the parties patience and latitude to le documents out of time which promoted the right to fair hearing under article 50 of the . No amount of compulsion, pressure or threats should be brought to bear on the ODPC to the extent of rendering a nding out of time. kenyalaw.org/caselaw/cases/view/258092/ 3