Anthony Mwenda v Ceres Tech Limited T/A Rocketpesa

Cases Detail

Cases

Anthony Mwenda v Ceres Tech Limited T/A Rocketpesa

Country: Kenya
Court: ODPC
Status: Determination
Tags: data subjects rights

Case summary

The complainant received a message stating that they had gotten a loan from the respondent that came with screenshot evidence. The complainant insisted that he never acquired a loan from the respondent. The respondent provided the phone number and ID number used. The complainant stated that it was a case of fraud given the number used was not his but the identification number was and even reported it to the police station asserting that the respondent provided false misleading information. The respondent still threatened him to pay the loan  by calling from a different number. 

Upon a preliminary review, the respondent stated that neither the number or ID was in their database and stated that their records do not show any loan associated with the complainant's name.

Issues for determination

  1. Whether there was a violation of the complainants rights under the Act?
  2. Whether the respondent fulfilled its obligation under the Act?
  3. Whether the complainant is entitled to any remedies under the Act and the attendant regulations?

Determination

The respondent violated the right to inform the complainant of the use of their data, the right to object to the processing of the data and for unlawfully handling this data. Additionally, a recommendation of prosecution was made to the director of the respondents company for obstruction of the commissioner while exercising their power as well as giving false material pursuant to Section 61(a) and (d) of the Data Protection Act. Also, an enforcement notice was issued to the respondent and a fine of Ksh 700,000 to be paid to the complainant.The parties were informed of the right to appeal within 30 days.

Analysis

The complainant stated that they had been receiving whatsapp messages and calls about a loan that they are not a party to. Additionally, they had the right to be informed under Section 26(a) and the Respondent ought to have informed the complainant of the use of the personal data collected for the purpose of the loan disbursement.The respondent failed to consider the complainant’s right to object to the processing of their personal data, as the complainant had objected through WhatsApp. Consequently, the respondent violated the complainant’s rights to be informed and to object to the processing of their personal data.

Under Section 25 of the Data Protection Act, the respondent has a right to process the data according to the right to privacy and in a manner that is lawful, fair and transparent. In this case the respondent failed to ensure that the details of the National ID were accurate and reliable.

Section 28(2) sets out instances that data can be indirectly collected, however the conditions set therein must be met given he obtained this information from a third party and as such, the failure to collect the data directly exposed him to financial fraud associated with a loan he did not apply for. Additionally, the respondent failed to adhere to lawful processing of data provided for under Section 30 of the Act.

Pursuant to regulation 14(2) and 14(3) of the enforcement regulations provides that a determination will provide the remedy. The complainant in their prayers stated that they wanted 3,00,000ksh as compensation of which a data subject can be accorded pursuant to Section 65 if the act.The ODPC took all facts and issues into consideration and declines the three million compensation and instead ordered that the respondent pay 700,000ksh and a recommendation for prosecution made to the director of the respondents of the respondents com

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.