Victor Akidiva vs The Cooperative Bank of Kenya Limited

Cases Detail

Cases

Victor Akidiva vs The Cooperative Bank of Kenya Limited

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: data protection,privacy breaches,consent

Case Summary

The office of the data protection commissioner (ODPC) received a complaint from Victor Akidiva against the co-operative bank of kenya limited. The complainant alleged that his credit reference bureau (CRB) report was disclosed to a third party, Pauline Kanini Muvya, without his consent or a court order. The respondent failed to establish how Pauline obtained the report. The ODPC investigated the complaint and issued a determination based on the findings.

Issues for Determination

  1. Whether there was a violation of the complainant's rights under the data protection act.
  2. Whether the respondent fulfilled its obligations under the data protection act.
  3. Whether the complainant is entitled to any remedies under the act and the attendant regulations.

Determination

The office of the data protection commissioner (ODPC) determined that the Co-operative Bank of Kenya Limited is liable for violating Victor Akidiva's personal data rights by unlawfully sharing his credit reference bureau (crb) report with a third party without his consent. Consequently, the ODPC will issue an enforcement notice against the respondent. Additionally, the ODPC recommended the prosecution of Pauline Kanini Muvya under section 57(3) of the data protection act for failing to comply with the odpc's summons. Both parties have the right to appeal this determination to the high court of Kenya within 30 days.

Analysis

On whether there was a violation of complainant's rights under the act

The complainant has rights under section 26 of the data protection act, including the right to be informed of the use to which his personal data is put. The respondent collected the complainant's personal data as part of a loan agreement. However, sharing this data with Pauline without the complainant's consent violated his privacy rights. The respondent could not establish how Pauline obtained the crb report, indicating a failure to process the complainant's data in accordance with the act and its regulations. Both the respondent and Pauline violated the complainant's rights.

On whether the respondent fulfilled its obligations under the act

The respondent, as a data controller and processor, has obligations under section 25 of the act to adhere to data protection principles. the respondent failed to ensure that the complainant's data was processed lawfully and transparently. Despite having the right to generate crb reports for internal purposes, the respondent could not demonstrate a lawful basis for sharing the complainant's data with pauline. In addition, the respondent did not fulfill its obligation under section 32 of the act to prove that the complainant consented to the data processing. The respondent also failed to comply with section 41 of the act, which mandates data protection by design and by default.

On whether the complainant is entitled to any remedies under the act and the attendant regulations

The complainant sought various reliefs, including prosecution of the person who misused his data and improvements in the respondent's data protection processes. given the violations found, the ODPC decided to issue an enforcement notice against the respondent. Furthermore, Pauline's refusal to comply with the odpc's summons makes her criminally liable under section 57 of the act. Therefore, the ODPC recommended her prosecution.

 

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.