Risper Onyango v Sunking Limited

Cases Detail

Cases

Risper Onyango v Sunking Limited

Country:
Court: ODPC
Status: Determination
Tags: Complaints

Case summary

The complainant alleged that the respondent has been sending her unwanted messages two times a week, consistently, for a year. She claimed that the complainant had failed to pay for a particular product therefore they were up for an auction and the respondents would go for an unwelcome visit. The complainant was not able to reach out to the respondent and claims that they had never been the respondent’s client nor have they interacted with their products. When the complainant finally reached one of the respondents' staff, they requested for the messages to stop however they still persisted. Evidence of the same was adduced.

Issues for determination

  1. Whether there was a violation of the complainants rights under the Data Protection Act?
  2. Whether the Respondent fulfilled its obligation under the Data Protection Act?
  3. Whether the complainant is entitled to any remedies under the Act?

Determination

The respondent was liable for infringement of the complainants rights to be informed under Section 26(a) of the Act, the respondent is to pay the complainant a sum of 250,000ksh as compensation, issue an enforcement notice to the respondent and the parties have the right to appeal to the High Court within 30 days.

Analysis

In the first issue, the right to be informed of the complainant was violated under Section 26(a) given they failed to inform him at the point of collection of the personal data as they collected the complainants phone number and used it to communicate with them on an unlawful basis.

In the second issue,Section 28(1) of the Data Protection Act proves that the data controller shall collect the data directly from the data subject, however the complainant states that they did not give the respondent their number. Additionally, the respondent failed to prove the legal basis under Section 28(2)(c) of the Data Protection Act. Additionally, the respondent failed to get consent for the data that they processed, therefore the respondent failed to fulfil the obligation under Section 30 of the data protection act.

In the third issue, pursuant to Regulation 14(2) and 14(3) of the Enforcement Regulations, a determination will state the remedy to which the complainant is entitled to. The complainant requested for compensation pursuant to Section 65 of the Act of which the Data commissioner can make an order through Regulation 14(3)(e) of the Enforcement regulations. The respondent was ordered to pay ksh 250,000 and an enforcement notice ordered against the respondent pursuant to Section 58 of the Act and regulation 16 of the Enforcement regulations.

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.