John Okangi v. National Bank of Kenya Limited and Keysian Auctioneers

Cases Detail

Cases

John Okangi v. National Bank of Kenya Limited and Keysian Auctioneers

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: data protection,privacy breaches,data processing,vicarious liability,Consent

Case Summary

The case is a determination issued by the Office of the Data Protection Commissioner in response to a complaint received from John Okangi. The complaint alleged that a bank, referred to as the 1st Respondent (National Bank of Kenya Limited), disclosed the complainant's loan statement and bank account details to a third party without the complainant's consent. The complaint was filed under Section 56 of the Data Protection Act and Regulation 14 of the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021.

The determination outlines the evidence presented by both the complainant and the 1st Respondent. It states that the complainant submitted a filled complaint form and a screenshot of an email sent from an employee of the 1st Respondent to a third party, which indicated the complainant's outstanding loan balance and included his loan statement and customer account statement. The 1st Respondent responded to the notification of the complaint, acknowledging that its staff member shared the complainant's details without consent, but claimed that it was the employee's individual action and not in line with the bank's policies.

The determination also addresses the 2nd Respondent (Keysian Auctioneers), who allegedly shared the complainant's account information with a third party without consent. However, the determination concludes that the complainant failed to provide sufficient proof to support this claim against the 2nd Respondent, resulting in the dismissal of the complaint against them.

The Data Commissioner's determination found the 1st Respondent vicariously liable for the actions of its employee, emphasising that the employee's conduct was in the ordinary course of duty and that the bank failed to provide proof of disciplinary measures taken against the employee. As a result, an enforcement notice was issued against the 1st Respondent for failing to fulfil its obligations under the Data Protection Act.

Issues for determination

The issues for determination in the case are as follows:

  1. Whether the 1st Respondent is vicariously liable for its employee's conduct under the Data Protection Act.
  2. Whether the Respondents, including the 1st and 2nd Respondents, fulfilled their obligations under the Data Protection Act.
  3. Whether the complainant is entitled to any remedies under the Data Protection Act and the attendant Regulations.

Determination

The Data Protection Commissioner's determinations regarding the complaint are as follows:

Firstly, the Commissioner found the 1st Respondent to be vicariously liable for its employee's conduct under the Data Protection Act. This decision was based on the employee's actions being deemed within the ordinary course of duty, coupled with the 1st Respondent's failure to provide evidence of disciplinary measures taken against the employee. Secondly, the determination concluded that the 1st Respondent failed to fulfil its obligations under the Data Protection Act, leading to the issuance of an enforcement notice against the 1st Respondent. Lastly, the complaint against the 2nd Respondent was dismissed due to the complainant's inability to provide adequate proof to substantiate the claim against them. These determinations were made in accordance with the evidence presented and the legal provisions of the Data Protection Act and its associated Regulations.

Analysis

The case involves a complaint filed by an aggrieved data subject John Okangi, the Complainant, who alleged that the 1st Respondent, National Bank of Kenya Limited, and the 2nd Respondent, Keysian Auctioneers, violated their data protection rights. The Complainant accused the 1st Respondent of disclosing their personal financial information to a third party without consent. Following these allegations, the Data Protection Commissioner conducted an investigation and made determinations based on the gathered evidence and relevant legal provisions.

Regarding the facts of the case, the Complainant alleged that a staff member of the 1st Respondent shared the Complainant's account information with a third party without obtaining consent. The 1st Respondent admitted that the staff member's actions did occur and recognized this as misconduct, prompting an internal investigation. Additionally, the 2nd Respondent was accused of facilitating the sharing of the Complainant's personal details, but the Complainant did not provide sufficient evidence to substantiate this claim against the 2nd Respondent.

Several legal provisions were cited in this case. Article 31 (c) and (d) of the Constitution of Kenya 2010 guarantees the right to privacy, which serves as the legal foundation for data protection and privacy rights in the country. The Data Protection Act, 2019, governs the processing of personal data, delineates the rights of data subjects, and establishes obligations for data controllers and processors. Furthermore, the Data Protection (Complaints Handling Procedure and Enforcement) Regulations, 2021, outline the procedures for handling complaints related to data protection violations and the mechanisms for enforcement.

In the analysis, it was established that both the 1st Respondent, as a data controller, and the 2nd Respondent, as a data processor, had specific obligations under the Data Protection Act. The 1st Respondent conceded that a personal data breach had occurred, and acknowledged that the staff member's actions, which violated the Code of Ethical Conduct, resulted in the unauthorised sharing of the Complainant's details. Although the 1st Respondent argued that the staff member's misconduct was against its policies, this defence did not absolve it from liability. Conversely, the 2nd Respondent was not held liable due to the lack of sufficient evidence provided by the Complainant to support the allegations.

In the determination, the 1st Respondent was found vicariously liable for the employee's conduct and was held in breach of Section 30 of the Data Protection Act for sharing the Complainant's details without consent. As a result, an enforcement notice was issued against the 1st Respondent, and the Complainant was entitled to remedies under the Act and the corresponding regulations.

In summary, this case involved a significant breach of data protection rights. The determinations were made based on the evidence presented and the legal provisions of the Data Protection Act and associated regulations. The findings underscored the obligations of data controllers and processors and highlighted the consequences of failing to adhere to data protection principles.

 

Frequently Asked Questions

Frequently Asked Questions

A data subject is a natural person who is the subject of personal data held by a controller and who can be identified, directly or indirectly, through that personal data.

Each data subject has the right:

  • to be informed whether or not his or her personal data is being processed,
  • to request information about the processing, if data has been processed,
  • to be informed of the purpose of the processing and whether the data is being used in accordance with those purposes,
  • to be informed about third parties who receive personal data in Kenya and abroad,
  • to request the rectification of incomplete or inaccurate processed data, and
  • to request the erasure or destruction of personal data.

Data processing refers to any operation performed on personal data, either entirely or partially, automatically or manually. This includes collection, recording, storage, preservation, modification, revision, disclosure, transmission, assignment, making available, classification, or prevention of use.

Data controller: is a natural or legal person who determines the purposes and means of personal data processing and is accountable for the data filing system's establishment and administration.

Data processor: is a natural or legal person that processes personal data on the basis of a data controller's authorization.

The data controller or processor is required to provide the following information: the purpose of the processing, the recipients of the processed data and the purpose of the transfer, the method used to collect personal data and its legal basis, and any other rights granted to the data subject by law.

The principles governing data processing are as follows: it must be processed fairly and lawfully, it must be accurate and up to date, it must be processed for specified, explicit, and legitimate purposes, it must be adequate, relevant, and not excessive in relation to the purposes for which it is processed, and it must be retained for the duration specified by law or for no longer than is necessary for the subsequent processing.

A Data Protection Impact Assessment can be used to identify and mitigate high risks associated with data processing that may impact the rights and freedoms of data subjects.

A data controller is a natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purpose and means of processing of personal data. On the other hand, a data processor is a natural or legal person, public authority, agency or other body which processes personal data on behalf of the data controller.