Yasin Abukar Vs Wananchi Group Kenya Limited T/A Zuku Fibre Kenya

Cases Detail

Cases

Yasin Abukar Vs Wananchi Group Kenya Limited T/A Zuku Fibre Kenya

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

Case Summary.

The complainant filed a complaint to the ODPC on 15 November 2024 against the Respondent alleging the respondent’s failure to delete his personal data despite repeated requests to do so, a contravention to Section 40 of the Act. The Complainant had ceased being the Respondent’s clients but the respondent continued to send promotional messages to him despite multiple verbal, phone and email requests. The complainant tried issuing a formal request via an email address in the Respondent’s website which was undelivered. The complainant only received a “Service Auto suspension Notification” from the Respondent on 18 November 2024 after this complaint was already lodged. The Respondent contented that they had not received any formal request for deletion from the complaint and that the email address in the website was accurate and monitored. The Respondents' employees and agents were also uncooperative and despite the ODPC having a court warrant to search the respondent premises, digital and manual records and systems, such access was denied. The ODPC also attempted to conduct the Respondent via the email address in their Data Protection policy but the same was unsuccessful.

Issues for Determination

i.  Whether there was an infringement of the Complainant’s rights under the Act and its attendant regulation; and

ii. Whether the Complainant is entitled to any remedies under the Act and the attendant regulations.

Determination

The  Respondent violated the Complainant’s right to object to the processing of their personal  data and the right to deletion of their personal data as provided by Section 36 and 40 of the Act. They denied the complainant the avenue to exercise his rights as their email address was ineffective. The Complainant is thus entitled to damages of KES. 500,000/=. The ODPC also recommended the prosecution of the Respondent’s directors for obstructing the Data commissioner.

Analysis

The case emphasizes on the right to object under Section 36 of the Act and erasure of personal data on request by a data subject as per Section 40 of the Act. The respondent in this case failed to have mechanisms to receive and effect erasure and objection requests from data subjects by providing ineffective email addresses in its website. Data Controllers and processors are required to cooperate with the Data Commissioner during investigation to avoid contravention of Section 61 of the Act. To ensure compliance with Section 26, 40 and 36 of the Act of objection and erasure rights, data controllers and Processors should ensure mechanisms to handle complaints.

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.