Wesley Okello vs Risine Credit Limited

Cases Detail

Cases

Wesley Okello vs Risine Credit Limited

Country: Kenya
Court: Office of the Data Protection Commissioner
Status: Determination
Tags: right to privacy,data protection,right to be informed,consent

Case Summary

Wesley Okello (Complainant) complained that Risine Credit Limited (Respondent), through their Ipesa Product, contacted him about a loan taken by a third party, on which the Complainant was the guarantor. This was done without his knowledge or consent. The Complainant showed evidence via a text message of the same, while the Respondent did not respond. 

Issues For Determination

1.     Whether there was a violation of Complainant's right under Section 26 of the Data Protection Act (the Act), especially the right to be informed of his data being used;

2.     Whether the Respondent had obligations such as under Section 25, 28, and 29 of the Act to, inter alia, respect the right to privacy of the subject; to collect data directly from the subject, and to notify the subject respectively. 

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

Determination

By failing to inform the complainant that he was listed as a guarantor, the respondent violated the right to be informed under Section 26.

The Respondent had various obligations under the Act: Section 25, to, inter alia, ensure that data is processed in accordance with his right to privacy and processed lawfully, fairly and in a transparent manner in relation to the Complainant; Section 28 to collect data directly from the Subject; and Section 29, the obligation to notify the subject on, inter alia, rights specified under Section 26 and the fact that personal data was being collected.

The Complainant was entitled to an Enforcement Notice under Section 58 of the Act. 

Analysis

The case highlights significant breaches in data protection by the respondent, who failed to inform the complainant of his listing as a guarantor for a loan without his consent, violating Section 26 of the Data Protection Act. This neglect of the complainant's right to be informed and the oversight in disregarding the obligation to obtain consent (as mandated by Sections 30 and 32) proved to be consequential. The company's non-response to the notification of complaint raises concerns about its accountability and engagement with regulatory authorities. The issuance of an Enforcement Notice under Section 58 emphasises the importance of complying with data protection laws and maintaining trust with consumers through transparency and proper 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.