1. The Petitioner herein filed a Petition dated 13.9.23 seeking the following orders:
a) A declaration that the Respondent violated the Petitioner’s fundamental right to privacy and human dignity under Articles 28 and 31 of the Constitution by publishing the Petitioner’s image for the purpose of commercial advertisement without the Petitioner’s consent.
b) A declaration that the Petitioner’s intellectual property rights, right of publicity and personality rights were infringed when the Respondent published the Petitioner’s image in advertising and marketing of online study programs offered by the Respondent for financial gain without seeking authority/consent from the Petitioner.
c) A compensation of Kshs. 3,000,000/= for violation of the Petitioner’s rights.
d) A permanent injunction restraining the Respondent from publishing and/or using the Petitioner’s image and likeness in its advertisement or promotion in any way without the Petitioner’s consent.
e) Costs of the petition.
2. In opposition to the Petition, the Respondent filed an Application dated 27.2.24 seeking the striking out of the Petition for want of jurisdiction on account of the doctrine of exhaustion. It is the Respondent’s case that the dispute pertains to the right of privacy and data protection which fall within the jurisdiction of the Office of the Data protection Commissioner. As such, pursuant to the doctrine of exhaustion, the Petitioner was required to exhaust the available administrative remedies by referring the matter to the Office of the Data Protection Commissioner for investigation and determination in the first instance. Failure to seek redress as provided under the Data Protection Act (DPA) before approaching this Court is a violation of the doctrine of exhaustion, thus stripping this Court of the jurisdiction to entertain the Petition.
3. The Petitioner opposed the Application vide a replying affidavit sworn on 6.5.24. Her contention is that her Petition falls within the exemptions to the doctrine of exhaustion set out in Section 9(4) of the Fair Administrative Action Act (FAAA). She asserted that she and the Respondent are total strangers and therefore not subject to the administrative jurisdiction of the Office of the Data Protection Commissioner as put forth by the Respondent. Further that her Petition seeks inter alia a declaration that her fundamental rights have been infringed, compensation for violation of my constitutional rights and a permanent injunction against the Respondent. Her view is that these prayers can only be granted by this Court and not the Data Protection Commissioner (the Commissioner) and hence the doctrine of exhaustion is not applicable in this case.
4. This Court derives its jurisdiction principally from Article 165 of the Constitution. Relevant to the Petition herein, this Court has jurisdiction as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
5. Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in civil and criminal matters, including the jurisdiction to hear any question with respect to the interpretation of the Constitution. Under Article 23, this Court has jurisdiction in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The jurisdiction of this Court may however be limited by the Constitution and statute in certain instances. The Court may thus only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
6. While the Respondent contends that the Petitioner ought to have exhausted the mechanisms provided for under the DPA, the Petitioner asserts that that the DPA does not provide adequate relief for the violation she claims.
7. The Respondent pleads the doctrine of exhaustion in opposition to the Petition. The doctrine of exhaustion is encapsulated in the FAAA which was enacted to give effect to the right to fair administrative action guaranteed under Article 47 of the Constitution which provides:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
8. Section 9 of the FAAA sets out the procedure for judicial review of an administrative action as follows:
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
9. Section 9(2) prohibits this Court from reviewing an administrative action before other available mechanisms for resolution have been exhausted.
10. In the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR the Court of Appeal considered the doctrine of exhaustion and expressed itself thus:
Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.
11. Section 2 of the FAAA defines administrative action to include inter alia any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. The impugned act by the Respondent of which the Petitioner complains, constitutes an administrative action within the definition set out in Section 2 of the FAAA.
12. The Petitioner in her replying affidavit invoked the provisions of Section 9(4) of the FAAA and sought exemption as set out therein.
13. A careful perusal of the Petition will show that the Petitioner contends that the Respondent violated her constitutional rights by publishing her image for financial gain in advertisements, without her consent of authority. She seeks a declaration that her rights have been violated and compensation for the alleged violation. She also seeks an order restraining the Respondent from publishing or using her image without her consent. On its part, the Respondent contends that the Petitioner ought to have sought redress under the DPA.
14. In order to determine this Application, it is necessary to consider the remedies provided in the DPA and whether they offer sufficient and adequate remedy for the violations alleged by the Petitioner.
15. It is the Respondent’s case that the Commissioner is mandated to oversee and enforce data protection and privacy laws. As such, the matter herein being related to data privacy and protection, falls within the jurisdiction of the Commissioner. The Respondent thus argued that failure by the Petitioner to first seek redress through the office of the Commissioner before approaching this Court contravened the doctrine of exhaustion. Further that the Petitioner has not demonstrated any exceptional circumstances that would justify bypassing the office of the Commissioner. The Respondent urged that the Petition be struck out on grounds of prematurity.
16. For the Petitioner, it was submitted that the Office of the Commissioner cannot provide the remedies sought and has no power to issue a permanent injunction as sought against the Respondent.
17. After considering the submissions herein, it is quite evident that the essence of the Respondent’s challenge of the jurisdiction of this Court is anchored on the doctrine of exhaustion. Black’s Law Dictionary, Tenth Edition defines exhaustion as follows:
“exhaustion of remedies”. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.”
18. The Court of Appeal in the case of Republic v National Environmental Management Authority [2011] eKLR observed:
The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it – see for example R V. BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD. Case. The learned trial Judge, in our respectful view, considered these strictures and came to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute. With respect, we agree with the Judge.
19. Similarly, in the Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal had this to say about the doctrine of exhaustion:
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
20. In the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR, Mativo, J. (as he then was) stated:
32. A stated above, the impugned decision constitutes an administrative action as defined in section 2 of the Fair Administrative Action Act.[25] Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.[26]What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.[27] Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct.[28] An internal remedy is adequate if it is capable of redressing the complaint.[29]
21. The DPA provides several reliefs. Section 3 provides that the object and purpose of the Act is inter alia to ensure that the processing of personal data of a data subject is guided by the principles set out in section 25 and to protect the privacy of individuals. Section 8(f) provides that one of functions of the office of the Commissioner established under Section 5, is to receive and investigate any complaint by any person on infringements of the rights under this Act. Section 9 goes on to empower that office to inter alia conduct investigations on own initiative, or on the basis of a complaint made by a data subject or a third party.
22. Section 58 provides that the Commissioner may serve an enforcement notice upon any person who has failed, or is failing, to comply with any provision of the DPA. Under the provision, failure to comply with such notice is an offence the penalty for which is a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both. Further, Section 62 provides that the Commissioner may require such person to pay a penalty to the office of the Commissioner. Section 65 provides for compensation from the data controller or the data processor to a person who suffers damage arising from a contravention of a requirement of the DPA. Section 73 provides for general penalty in respect of which no specific penalty is provided. Section 73(2)(b) provides that a person may be ordered or prohibited from doing any act to stop a continuing contravention. Notably, this can only be done by a court and not the Commissioner.
23. In the instant case, the reliefs sought by the Petitioner are a declaration of violation of rights and compensation for the violation as well as a permanent injunction restraining the Respondent from publishing her image without her consent. The DPA does not give powers to the Commissioner to make the declaration sought. Further, while Section 65 provides for compensation to a person who suffers damage arising from a contravention of a requirement of the DPA, its is not indicated whether the Commissioner has the power to order such compensation. Additionally, an injunction can only be issued by this court and not by the Commissioner. My view is that it would be irrational and unreasonable to require that she seek redress from the Commissioner who has no powers to grant the same.
24. After juxtaposing the remedies in the DPA with the reliefs sought by the Petitioner, it is quite evident that the same are not sufficient, adequate and effective to resolve the dispute herein. The powers conferred upon the Commissioner under the DPA are limited and offer inadequate redress in the circumstances.
25. In light of the foregoing, I find that this is a proper case for the Court to invoke the provisions of Section 9(4) of the FAAA and exempt the Petitioner, in the interest of justice, from the obligation to exhaust he remedies in the DPA. To postpone judicial consideration of the matters raised by the Petitioner by demanding that she seeks relief from the mechanisms provided under the DPA would militate against the constitutional imperative in Article 47 of the Constitution that every administrative action must be expeditious, efficient, reasonable and procedurally fair. In this regard, I associate with the following sentiments expressed by Mativo, J. (as he then was) in the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR:
32. A stated above, the impugned decision constitutes an administrative action as defined in section 2 of the Fair Administrative Action Act.[25] Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.[26]What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.[27] Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct.[28] An internal remedy is adequate if it is capable of redressing the complaint.[29]
26. In the end and in view of the foregoing analysis of the issues raised and the law, the Court finds that the Application dated 27.2.24 lacks merit and the same is hereby dismissed. Costs in the cause.
DATED SIGNED and DELIVERED in MALINDI on 25th day of April 2025
a) A declaration that the Respondent violated the Petitioner’s fundamental right to privacy and human dignity under Articles 28 and 31 of the Constitution by publishing the Petitioner’s image for the purpose of commercial advertisement without the Petitioner’s consent.
b) A declaration that the Petitioner’s intellectual property rights, right of publicity and personality rights were infringed when the Respondent published the Petitioner’s image in advertising and marketing of online study programs offered by the Respondent for financial gain without seeking authority/consent from the Petitioner.
c) A compensation of Kshs. 3,000,000/= for violation of the Petitioner’s rights.
d) A permanent injunction restraining the Respondent from publishing and/or using the Petitioner’s image and likeness in its advertisement or promotion in any way without the Petitioner’s consent.
e) Costs of the petition.
2. In opposition to the Petition, the Respondent filed an Application dated 27.2.24 seeking the striking out of the Petition for want of jurisdiction on account of the doctrine of exhaustion. It is the Respondent’s case that the dispute pertains to the right of privacy and data protection which fall within the jurisdiction of the Office of the Data protection Commissioner. As such, pursuant to the doctrine of exhaustion, the Petitioner was required to exhaust the available administrative remedies by referring the matter to the Office of the Data Protection Commissioner for investigation and determination in the first instance. Failure to seek redress as provided under the Data Protection Act (DPA) before approaching this Court is a violation of the doctrine of exhaustion, thus stripping this Court of the jurisdiction to entertain the Petition.
3. The Petitioner opposed the Application vide a replying affidavit sworn on 6.5.24. Her contention is that her Petition falls within the exemptions to the doctrine of exhaustion set out in Section 9(4) of the Fair Administrative Action Act (FAAA). She asserted that she and the Respondent are total strangers and therefore not subject to the administrative jurisdiction of the Office of the Data Protection Commissioner as put forth by the Respondent. Further that her Petition seeks inter alia a declaration that her fundamental rights have been infringed, compensation for violation of my constitutional rights and a permanent injunction against the Respondent. Her view is that these prayers can only be granted by this Court and not the Data Protection Commissioner (the Commissioner) and hence the doctrine of exhaustion is not applicable in this case.
4. This Court derives its jurisdiction principally from Article 165 of the Constitution. Relevant to the Petition herein, this Court has jurisdiction as follows:
(3) Subject to clause (5), the High Court shall have—
(a) unlimited original jurisdiction in criminal and civil matters;
(b) jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;
5. Article 165(3) of the Constitution confers upon the High Court unlimited original jurisdiction in civil and criminal matters, including the jurisdiction to hear any question with respect to the interpretation of the Constitution. Under Article 23, this Court has jurisdiction in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. The jurisdiction of this Court may however be limited by the Constitution and statute in certain instances. The Court may thus only exercise that jurisdiction which has been conferred upon it by the Constitution, statute or both. In the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR the Supreme Court succinctly stated:
A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
6. While the Respondent contends that the Petitioner ought to have exhausted the mechanisms provided for under the DPA, the Petitioner asserts that that the DPA does not provide adequate relief for the violation she claims.
7. The Respondent pleads the doctrine of exhaustion in opposition to the Petition. The doctrine of exhaustion is encapsulated in the FAAA which was enacted to give effect to the right to fair administrative action guaranteed under Article 47 of the Constitution which provides:
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—
(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and
(b) promote efficient administration.
8. Section 9 of the FAAA sets out the procedure for judicial review of an administrative action as follows:
(1) Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution.
(2) The High Court or a subordinate court under sub-section (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).
(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.
(5) A person aggrieved by an order made in the exercise of the judicial review jurisdiction of the High Court may appeal to the Court of Appeal.
9. Section 9(2) prohibits this Court from reviewing an administrative action before other available mechanisms for resolution have been exhausted.
10. In the case of Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR the Court of Appeal considered the doctrine of exhaustion and expressed itself thus:
Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime.
11. Section 2 of the FAAA defines administrative action to include inter alia any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates. The impugned act by the Respondent of which the Petitioner complains, constitutes an administrative action within the definition set out in Section 2 of the FAAA.
12. The Petitioner in her replying affidavit invoked the provisions of Section 9(4) of the FAAA and sought exemption as set out therein.
13. A careful perusal of the Petition will show that the Petitioner contends that the Respondent violated her constitutional rights by publishing her image for financial gain in advertisements, without her consent of authority. She seeks a declaration that her rights have been violated and compensation for the alleged violation. She also seeks an order restraining the Respondent from publishing or using her image without her consent. On its part, the Respondent contends that the Petitioner ought to have sought redress under the DPA.
14. In order to determine this Application, it is necessary to consider the remedies provided in the DPA and whether they offer sufficient and adequate remedy for the violations alleged by the Petitioner.
15. It is the Respondent’s case that the Commissioner is mandated to oversee and enforce data protection and privacy laws. As such, the matter herein being related to data privacy and protection, falls within the jurisdiction of the Commissioner. The Respondent thus argued that failure by the Petitioner to first seek redress through the office of the Commissioner before approaching this Court contravened the doctrine of exhaustion. Further that the Petitioner has not demonstrated any exceptional circumstances that would justify bypassing the office of the Commissioner. The Respondent urged that the Petition be struck out on grounds of prematurity.
16. For the Petitioner, it was submitted that the Office of the Commissioner cannot provide the remedies sought and has no power to issue a permanent injunction as sought against the Respondent.
17. After considering the submissions herein, it is quite evident that the essence of the Respondent’s challenge of the jurisdiction of this Court is anchored on the doctrine of exhaustion. Black’s Law Dictionary, Tenth Edition defines exhaustion as follows:
“exhaustion of remedies”. The doctrine that, if an administrative remedy is provided by statute, a claimant must seek relief first from the administrative body before judicial relief is available. The Doctrine’s purpose is to maintain comity between the courts and administrative agencies and to ensure that courts will not be burdened by cases in which juridical relief is unnecessary.”
18. The Court of Appeal in the case of Republic v National Environmental Management Authority [2011] eKLR observed:
The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted, and that in determining whether an exception should be made and judicial review granted, it was necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it – see for example R V. BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD. Case. The learned trial Judge, in our respectful view, considered these strictures and came to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute. With respect, we agree with the Judge.
19. Similarly, in the Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal had this to say about the doctrine of exhaustion:
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.
20. In the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR, Mativo, J. (as he then was) stated:
32. A stated above, the impugned decision constitutes an administrative action as defined in section 2 of the Fair Administrative Action Act.[25] Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.[26]What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.[27] Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct.[28] An internal remedy is adequate if it is capable of redressing the complaint.[29]
21. The DPA provides several reliefs. Section 3 provides that the object and purpose of the Act is inter alia to ensure that the processing of personal data of a data subject is guided by the principles set out in section 25 and to protect the privacy of individuals. Section 8(f) provides that one of functions of the office of the Commissioner established under Section 5, is to receive and investigate any complaint by any person on infringements of the rights under this Act. Section 9 goes on to empower that office to inter alia conduct investigations on own initiative, or on the basis of a complaint made by a data subject or a third party.
22. Section 58 provides that the Commissioner may serve an enforcement notice upon any person who has failed, or is failing, to comply with any provision of the DPA. Under the provision, failure to comply with such notice is an offence the penalty for which is a fine not exceeding five million shillings or to imprisonment for a term not exceeding two years, or to both. Further, Section 62 provides that the Commissioner may require such person to pay a penalty to the office of the Commissioner. Section 65 provides for compensation from the data controller or the data processor to a person who suffers damage arising from a contravention of a requirement of the DPA. Section 73 provides for general penalty in respect of which no specific penalty is provided. Section 73(2)(b) provides that a person may be ordered or prohibited from doing any act to stop a continuing contravention. Notably, this can only be done by a court and not the Commissioner.
23. In the instant case, the reliefs sought by the Petitioner are a declaration of violation of rights and compensation for the violation as well as a permanent injunction restraining the Respondent from publishing her image without her consent. The DPA does not give powers to the Commissioner to make the declaration sought. Further, while Section 65 provides for compensation to a person who suffers damage arising from a contravention of a requirement of the DPA, its is not indicated whether the Commissioner has the power to order such compensation. Additionally, an injunction can only be issued by this court and not by the Commissioner. My view is that it would be irrational and unreasonable to require that she seek redress from the Commissioner who has no powers to grant the same.
24. After juxtaposing the remedies in the DPA with the reliefs sought by the Petitioner, it is quite evident that the same are not sufficient, adequate and effective to resolve the dispute herein. The powers conferred upon the Commissioner under the DPA are limited and offer inadequate redress in the circumstances.
25. In light of the foregoing, I find that this is a proper case for the Court to invoke the provisions of Section 9(4) of the FAAA and exempt the Petitioner, in the interest of justice, from the obligation to exhaust he remedies in the DPA. To postpone judicial consideration of the matters raised by the Petitioner by demanding that she seeks relief from the mechanisms provided under the DPA would militate against the constitutional imperative in Article 47 of the Constitution that every administrative action must be expeditious, efficient, reasonable and procedurally fair. In this regard, I associate with the following sentiments expressed by Mativo, J. (as he then was) in the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR:
32. A stated above, the impugned decision constitutes an administrative action as defined in section 2 of the Fair Administrative Action Act.[25] Therefore, an internal remedy must be exhausted prior to Judicial Review, unless the appellant can show exceptional circumstances to exempt him from this requirement.[26]What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue.[27] Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law, and available if it can be pursued, without any obstruction, whether systemic or arising from unwarranted administrative conduct.[28] An internal remedy is adequate if it is capable of redressing the complaint.[29]
26. In the end and in view of the foregoing analysis of the issues raised and the law, the Court finds that the Application dated 27.2.24 lacks merit and the same is hereby dismissed. Costs in the cause.
DATED SIGNED and DELIVERED in MALINDI on 25th day of April 2025