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Continuing its trend of active enforcement of its mandate under the Kenya Data Protection Act (DPA), the Office of the Data Protection Commissioner (ODPC) recently published a significant ruling that:
On 6 January 2023, the ODPC issued a decision in Allen Waiyaki Gichuhi & Charles Wamae v Florence Mathenge & Ambrose Waigwa. The complaint was filed by a Nairobi law firm, on its own behalf and on behalf of certain clients of the firm, against its former employees on 20 July 2022. The complaint alleged that one of the former employees disclosed personal and sensitive data, in the form of court documents, to the other former employee, via email, without the consent of the relevant data subjects. The firm argued that the former employee’s conduct violated Section 72 of the DPA which prohibits the unauthorised disclosure of personal data by a data controller. The ODPC dismissed the complaint while also clarifying a number of important principles outlined below.
In addition, the law firm’s failure to avail copies of the documents that it alleged contained personal data made it impossible for the ODPC to determine whether there had indeed been a breach of Section 72 of the DPA. The ODPC also noted that the law firm did not provide evidence showing it had been instructed by its clients to file the complaint on their behalf.
It is clear that the ODPC possesses and has begun exercising its wide-ranging powers to enforce the provisions of the DPA. Especially since the ODPC has the power to conduct its own investigations upon receiving a complaint. Entities must therefore prioritise understanding their compliance obligations under the DPA as this decision gives individuals the confidence to enforce their rights against data controllers or data processors.
Should you have any questions regarding the information in this legal alert, please do not hesitate to contact Wangui Kaniaru.
1. Zilla Moka – Principal Associate
2. Humphrey Ngari – Trainee Lawyer