Chepkoech Lorna & 22 Others vs Firch International Company Limited T/A Pesa Pay

Cases Detail

Cases

Chepkoech Lorna & 22 Others vs Firch International Company Limited T/A Pesa Pay

Country: Kenya
Court:
Status: Determination
Tags: privacy breaches,data subjects’ rights,consent

Case Summary

Twenty-three Complainants lodged formal complaints with the Office of the Data Protection Commissioner (ODPC) against Firch International Company Limited, trading as Pesa Pay. The complaints alleged that the Respondent unlawfully accessed mobile phone contacts, sent unwarranted messages, demanded repayment of loans not owed, and disclosed personal data to third parties without consent. Additionally, one Complainant accused the Respondent of publishing his personal mobile number on the application interface without consent. The ODPC conducted investigations pursuant to the Data Protection Act, 2019 and relevant regulations. The Respondent acknowledged certain practices, including the use of users’ phonebook contacts by its external partners for debt collection, and claimed to have taken remedial steps such as contacting these partners to halt further messaging and expressing intent to terminate its operations in Kenya.

Issues for Determination

  1. Whether the Respondent obtained contacts from its clients’ phonebooks and contacted the Complainants regarding loans they had not consented to guarantee.
  2. Whether the Respondent put the personal mobile number of one of its employees on the face of its Pesa Pay application without his consent.
  3. Whether there was any infringement of the Complainants' rights as data subjects under the Data Protection Act, 2019.

Determination

The Respondent was found liable for:

  • Accessing and using personal contact information from users’ phonebooks without proper consent from the Complainants.
  • Publishing a Complainant’s mobile number on the Pesa Pay application without his consent and ignoring requests for its removal.
  • Violating multiple provisions of the Data Protection Act, including Sections 26, 28, and 61, by failing to inform data subjects of processing purposes, collecting data indirectly, and obstructing the Data Commissioner.

An enforcement notice was issued against the Respondent, and the parties were advised of their right to appeal to the High Court.

Analysis

This case underscores the importance of obtaining explicit, informed consent from all data subjects before collecting or processing their personal data. The Respondent failed to comply with Section 28(1) of the Data Protection Act, which mandates that data should be collected directly from the data subject. Further, the use of personal data without notification violated Section 26, which guarantees the right to be informed, object, and request deletion.

By publishing an employee's mobile number without consent, the Respondent violated the rights to object to processing and to deletion. Its failure to remove the number even after requests highlights the importance of respecting data subject rights under Section 26 of the Data Protection Act. Additionally, its attempt to evade service of the complaint notification contravened Section 61, which prohibits obstruction of the Commissioner’s duties.

The determination reinforces the need for digital lenders and other entities to implement robust consent mechanisms, notify individuals of data use, and ensure transparency and accountability in personal data handling.

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.