Dennis Caleb Owuor v Whitepath Company

Cases Detail

Cases

Dennis Caleb Owuor v Whitepath Company

Country: Kenya
Court: ODPC
Status: Determination
Tags: Consent

Case summary

The complainant received a call from a debt collector from Whitepath Limited, who inquired about his name and contact information, disclosing that the complainant was listed as a guarantor.The respondent failed to provide clear information as to how the complainant was listed as a guarantor without their consent and was instead instructed to pay the loan. The complainant gave a warning not to be contacted and that he would lodge a complaint. The respondent still called persistently leaving the complainant in distress given they may have known the details of their residence.

Issue for determination

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

Determination

The respondent was found liable for processing the complainants data without consent on an unlawful basis and was ordered to pay Ksh 250,000 as compensation. An enforcement notice was issued to the respondent and the parties had the right of  appeal to the high court within 30 days.

Analysis

The complainant had a right under Section 26(a) to be informed of the use of their data. By the respondent not informing the complainant of the use of the data when collecting it, they  violated their right to be informed.

Additionally, the respondent should have processed the data in accordance with the right to privacy, in  a lawful and fair manner and with consent pursuant to Section 25(a), 25(b) and 30 of the Data protection Act. Therefore the respondent violated the complainant's rights by not establishing a lawful basis to process their data given he did not get consent. From the evidence adduced, the respondent failed to meet its obligations under Section 29 of the Act, as the complainant was not informed that they would be used as a guarantor, nor that their personal data would be used for that purpose.

Regulation 14(2) and 14(3) states that the complainant is entitled to a remedy. The complainant prayed for an injunction restraining Whitepath Company from using their data unlawfully as well as compensation according to Section 65 of the Data protection Act. The respondent was ordered to pay Ksh 250,000 for compensation and adhere to the order filed against the respondent under Section 58 of the Act and Regulation 16 of the Enforcement Regulations to expunge all the complainants data from the system and provide proof of the same.

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.