Two applications are before court under certificate of urgency. The certificate of urgency and the two applications are all dated 24 August 2023. The first application is a chamber summons seeking the second application, which is an application for leave to file a substantive judicial review application, to be admitted for disposal during this Honourable Court's current August/September recess. In particular, the prayers in the application for leave have been expressed thus:
" 1. This application be, and is, certified urgent for ex parte orders in the first instance.
2. Applicants be and are granted leave to apply for judicial review orders of:
(a) Prohibition restraining the 1st to 5th Respondents and their agents from further collecting, processing, or transferring the personal biometric data collected in Kenya using the Orb, without undertaking (or using an inadequate) Data Protection Impact Assessment contrary to section 31 of the Data Protection Act, 2019 or using consent obtained through inducement of a cryptocurrency—Worldcoin. And in the case of the 3rd to 5th Respondents without registering as data processors or controllers in Kenya.
(b) Certiorari to bring to this court and to quashing Worldcoin’s decision to collect, process, or transfer biometric data collected in Kenya using the Orb, without undertaking (or using an inadequate) Data Protection Impact Assessment contrary to section 31 of the Data Protection Act, 2019 and by consent obtained through inducement of a Cryptocurrency—Worldcoin.
(c) An order directing the Data Protection Commissioner to cancel the 1st and 2nd Respondents’ certificate of registration as a data controller in Kenya for being obtained through misrepresentation or material non-disclosure contrary to section 19(2) of the Act and Regulation 5 and 16 of the Data Protection (Registration of Data Controllers and Data Processors) Regulations, 2021.
(d) Mandamus compelling the 1st to 5th Respondents to, within 7 days of the order, permanently erase and destroy (under the supervision of the Data Protection Commissioner) the personal biometric data collected by them from Kenya using the Orb for having been obtained unlawfully.
(e) A structural interdict directing the Cabinet Secretary (in consultation with the Data Commissioner) to prescribe practice guidelines for commercial use of personal data in Kenya under section 37(3) of the Act and to file the guidelines before the court within 12 months of the court’s order.
3. Leave so granted does operate as a stay—restraining the 1st to 5th Respondents from collecting, processing, or transferring the personal biometric data collected in Kenya, using the Orb, pending the hearing and determination of the application.
4. Leave does issue for Applicants to serve the 1st to 4th Respondents through their Kenyan agents, by email, or registered post."
For reasons given in the certificate of urgency, I am satisfied that the application for leave is urgent and it is so certified. I am also satisfied that the applicants deserve leave to file a motion for judicial review orders. Accordingly, leave is granted in terms of prayer 2 (a) to (e).
Based on the material before court; and. in order to protect data subjects whose personal biometric data has been collected from exposure by the 1st to 5th respondents, leave granted shall operate as stay in terms of prayer 3 of the summons pending the hearing and determination of the substantive motion.
The substantive motion shall be filed and served within 7 days of the date of this ruling. Leave is hereby granted for the 1st to 4th respondents to be served by way of substituted service, by advertisement in any of the daily newspapers of national circulation. The respondents and interested parties shall file and serve their response within seven days of the date of service of the applicants' motion.
Directions on the manner of disposal of the applicants' substantive motion shall be taken on 25 September 2023. Orders accordingly.