39.The 5th Respondent also submits that as was held in the cases of Republic v. Kenya Cricket Association [2006] eKLR and Republic v. Kenya Association of Music Producers (KAMP) & 3 others Ex parte Pubs, Entertainment and Restaurants Association of Kenya (PERAK) [2014] eKLR, judicial review orders can only be issued against public bodies or entities performing public functions. The 6th Respondent’s Case 40.The 6th Respondent Data protection Commissioner filed a Replying Affidavit sworn by Oscar Onyango Otieno on 17th November 2023. According to the 6th Respondent, sometime in March 2022, the Office of the Data Protection Commissioner (ODPC) discovered that Tools For Humanity US (TFH US) had been collecting sensitive personal data from Kenyan residents and transferring it abroad. The ODPC through a letter dated 19 th April 2022 requested information from TFH US, including the legal basis for processing the data and the safeguards in place. That at that time, TFH US and TFH GmbH were not registered as Data Controllers or Processors with the Office of the Data Protection Commissioner, but that later on, they applied for registration as data controllers. 41. The 6th respondent avers that TFH US through their advocates responded to the Page 16 of 84

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