Arnold Mwaura & Alex Karanja vs Mulla Pride Limited

Cases Detail

Cases

Arnold Mwaura & Alex Karanja vs Mulla Pride Limited

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: duty to notify,data subjects’ rights,consent

Case Summary

Arnold Mwaura and Alex Karanja filed complaints with the Office of the Data Protection Commissioner (ODPC) on May 11 and May 30, 2023, respectively, against Mulla Pride Limited, a digital loan provider. The 1st Complainant alleged receiving threatening calls and messages from the Respondent’s KeCredit product about a loan he had no knowledge of, despite not being a referee. The 2nd Complainant reported being insulted by the Respondent’s Faircash app regarding a loan taken by someone with his contact in their phonebook. The ODPC notified the Respondent on June 16, 2023, and received a response on June 30, 2023. Investigations confirmed unauthorized data processing.

Issues for Determination

1. Whether the Respondent obtained contacts from clients’ phonebooks and contacted the Complainants regarding loans they had not consented to guarantee.

2. Whether the Respondent fulfilled its duty to notify under Section 29 of the Data Protection Act, 2019.

3. Whether there was any infringement of the Complainants’ rights as data subjects as provided for in the Act.

Determination

The ODPC found Mulla Pride Limited liable for breaching Sections 28 and 29 of the Data Protection Act, 2019, by obtaining the Complainants’ contact details from clients’ phonebooks without their consent and failing to notify them of the collection and purpose of their data. This unauthorized processing infringed the Complainants’ rights under Section 26, particularly their right to be informed and to object to data processing. The ODPC ordered the issuance of an Enforcement Notice to address the violations, with the parties retaining the right to appeal to the High Court of Kenya.

Analysis

This case highlights the critical need for explicit consent and direct data collection under Sections 28 and 30 of the Data Protection Act, 2019. The Respondent’s practice of accessing phonebook contacts without informing or obtaining consent from the Complainants infringed their right to be informed and object to data processing. The threatening and insulting communications further exacerbated the violation. The case underscores the importance of clear mechanisms for data subjects to consent or decline being listed as referees in digital lending platforms. It serves as a precedent for enforcing accountability and transparency in data processing practices.

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.