Ayub Odanya Naburi Vs Geosky Service Limited

Cases Detail

Cases

Ayub Odanya Naburi Vs Geosky Service Limited

Country: Kenya
Court:
Status: Determination
Tags: data protection,Data subject rights

Case Summary.

The complainant is an esteemed professional, council member of the Institution of Surveyors Kenya, a lecturer and board member of the Estate Agents Registration board.The Respondent in May 2024 used the Complainant’s personal data to apply for a tender at the Central Bank of Kenya (CBK) for professional Valuers for valuation of fixed assets, by misrepresenting him as its employee. To enhance the bid credibility, the respondent used the Complainant’s credentials such as academic certificates, professional membership number and Curriculum Vitae obtained through one of the directors who had professional connections with him.The complainant lodged the complaint against the Respondent on 15 November 2024. This came after the Complainant became aware of the violation when CBK contacted Institution of Surveyors of Kenya for verification following concerns on the Respondents' qualifications.  As a result, the Complainant suffered reputational damage as the information circulated within professional surveyors and valuers. It created a false impression of professional misconduct and dishonesty in his position as an advocate. The Respondent did not submit any response on the complaint.

Issues of determination

  1. Whether there was a violation of the Complainant’s rights under the Act;
  2. Whether the Respondent fulfilled its obligations under the Act; and

3.Whether the Respondent is entitled to any remedies under the Act and the attendant Regulations.

Determination

The Respondent violated the Complainant’s right under Section 26 to be informed of the use of their personal data by not informing him of the collection and processing of their personal data. It also violated the data processing principles under Section 25 of the Act by unlawful processing his personal data for an unauthorized purpose. The Respondent did not show a lawful basis of processing his data as there was no consent, transparency or any lawful basis for use of his personal data. It violated Section 28 of the Act by collecting the personal data indirectly and not from the complainant and did not demonstrate any exception such as that the data was made public by the complainant. Further, the respondent violated the Right under Section 29 of the Act to notify a data subject of their rights, use and processing of their data thus failing to fulfil its obligations. As a result,the respondent was ordered to pay KES. 450,000/= as compensation. An enforcement notice was also issued against the Respondent, recommending that its directors be prosecuted for disclosing the Complainant’s data in a manner incompatible with the purpose for which it was collected, contrary to Section 72 of the Act.

Analysis

The case emphasises on the processing of personal data as per the purpose it was collected for. It serves as a warning to avoid fraudulent use of personal data by data controllers and processors who collect such data from third parties. Additionally the importance of establishing a lawful basis before processing of personal data and also notifying the data subject of their rights and use of their personal information is emphasized.

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.