55.
Through Oscar Onyango Otieno the Deputy Data Commissioner’s in Paragraph 15 to 20 of his
adavit dated 15.3.23 the Respondent admits that its nding was rendered out of time. He however
proceeds to blames the Applicant for the delay in keeping time.
56.
Two wrongs cannot make a right in law. The respondent cannot be heard to blame the applicant since
it lacked the legal authority enlarge time.
57.
In paragraph 17 of the said adavit, the respondent is inviting the court to consider the intention of
the statutes by applying a purposive interpretation to the issue of timelines.
58.
The court is of the rm view that where the Constitution or a statute has provided or set a strict time for
the delivery of a judgment or a nding then the High Court cannot be called upon to apply a purposive
interpretation of the law to enlarge time. Such an approach would be an aront of article 10 of the
Constitution and in particular the rule of law.
59.
Enlarging time in such a terrain would most certainly prejudice and or disadvantaged one or the other
parties in the dispute. The respondents jurisdiction lapsed on the ninetieth day from the day the
complaint is lodged.
60.
This court lacks the constitutional power to breathe life into a nding that has been arrived at ultra
vires under article 165 of the Constitution and I so hold.
61.
From the record it can be gleaned that 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 Constitution.
62.
This court further notes that at paragraph 20 of the replying adavit the respondent is urging the court
to consider the compelling circumstances that existed at the time when it considered the complaint out
of time. It is this court’s nding that 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.
63.
Having arrived at the foregoing nding, then the other grounds that have been raised by the Applicants
will not aect this courts’ nding on this issue of jurisdiction.
64.
Informed by the orders that this court will give, the court will not delve into the other issues raised by
the parties in their adavits or their submissions. To do so will compromise the parties’ respective cases.
Who Can Lodge A Complaint Before The ODPC?
65.
Article 31(c) & (d) of the Constitution provides that every person has the right to privacy, which
includes the right not to have information relating to their family or private aairs unnecessarily
required or revealed; and the privacy of their communications infringed.
66.
The Data Protection Act is an Act of Parliament that gives eect to article 31(c) and (d) of the
Constitution. It establishes the Oce of the Data Protection Commissioner to make provision for
the regulation of the processing of personal data and to provide for the rights of data subjects and
obligations of data controllers and processors and for connected purposes.
67.
The Act then denes a “data subject” as an identied or identiable natural person who is the subject
of personal data. It further denes an “identiable natural person” as a person who can be identied
directly or indirectly, by reference to an identier such as a name, an identication number, location
data, and an online identier or to one or more factors specic to the physical, physiological, genetic,
mental, economic, cultural or social or social identity.
kenyalaw.org/caselaw/cases/view/258092/
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