1. The application before this Court is the Notice of Motion dated 26th January, 2024 wherein the applicant is seeking the following orders:
1) THAT an Order of CERTIORARI to remove into this Honourable Court and quash the Determination issued by the 1st Respondent dated 15th January 2024 in ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisi v Fin Kenya (Formerly TrustGro SCA Limited.
2) THAT an Order of PROHIBITION to prohibit and restrain the Respondents either by itself, agents, employees or whatsoever from taking steps, actions and measures to enforce the Determination dated 15th January 2024 in ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisiv Fin Kenya (Formerly TrustGro SCA Limited.
3) THAT an Order of MANDAMUS compelling the Respondents to readmit for fresh investigations the Interested Party’s complaint in strict compliance of the Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021.
4) THAT costs of this Application be provided for.
2. It is the Applicant’s case is that the Respondents did not comply with mandatory and material provisions of Rule 11 of Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021 in handling a complaint dated 22nd November 2023.
3. It is contended the 1st Respondent issued a determination on 15th January 2024 ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisi v Fin Kenya (Formerly TrustGro SCA Limited) declaring the Applicant having allegedly infringed the Interested Party’s rights under the Data Protection Act of 2019, and directed the Applicant to make financial restitution and compensation totaling Kshs. 753, 440.00 to the Interested Party and ordering for enforcement notice to be issued against the Applicant.
4. The Applicant posits that the determination emanated from proceedings commenced by the Respondents through a notification issued on 22nd November 2023 addressed to them which on the face of it was manifestly and materially irregular incomplete and contravened the provisions of Rule 11 of the Data Protection (Complaints Handling and Enforcement Procedures) Regulation 2021.
5. According to them the Notification was irregular as;
i. It was not in the prescribed form DPC 3
ii. It did not state the time line within which they were to respond.
iii. The notification did not offer options available for resolving the complaint including determining the complaint through alternative dispute resolution mechanisms as specified in the Data Protection Act and the Regulations.
6. It is further contended that the Respondents failed to carry out investigations as is provided for under Section 57 of the Data Protection Act Cap 411 C and Rule 13 and 14 of the Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021 resulting in a decision that was procedurally unfair.
7. The Applicants’ canvassed their application by way of written submissions dated 11th July, 2024.
8. The Applicant invokes Section 4(1), 4 (3) and 4 (4) of the Fair Administrative Action Act (Reviewed, 2022) provides that,
“Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.”
9. Section 4(3) of the Act provides:
“Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a) prior and adequate notice of the nature and reasons for the proposed administrative action;
b) an opportunity to be heard and to make representations in that regard;
10. And Section 4 (4) of the Act dictates that:
“The administrator shall accord the person against whom administrative action is taken an opportunity to-
a) attend proceedings in person or in the company of an expert of his choice;
b) be heard;
c) cross-examine persons who give adverse evidence against him; and
d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.”
11. According to the Applicant, they were served with an incomplete Notification of Complaint letter which was also not paginated thus they had no way of knowing if any page was missing which rendered the resultant decision unfair.
12. Reliance is place in the case of Roma School Uthiru v Data Protection Commissioner; Muturi (Interested Party) [2024] KEHC 3927(KLR) as follows: -
“Notice is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be.
In Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 it was held: “The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision”
13. On the issue of costs, the Applicant prays that the Respondents bear the costs and invoke Section 27 of the Civil Procedure Act states:
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event…”
[2] The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
1st and 2nd Respondents’ case;
14. The 1st Respondent is a body corporate created pursuant to Section 5 of the Data Protection Act, 2019 (hereinafter referred to as the Act) the Regulations.
15. Section 8 of the Act stipulates its functions being inter alia, receiving and investigating any complaints brought forth on infringement of the rights under the Act and pursuant to Section 9 of the Act, the Office has power to, inter alia, conduct investigations based on a complaint by a complainant, and have the same concluded within ninety days.
16. The Respondents posit that the Interested party lodged a complaint with them on 17th October 2023 vide email.
17. In the said complaint, the Interested party alleged that his rights had been infringed by the Applicant citing that the applicant had used his personal data, being his employment details, to fill a loan application without his consent.
18. The Office proceeded to undertake a preliminary review of the complaint after which, the same was admitted and entered in the Register of Complaints as ODPC Complaint No. 2120 of 2023 and upon admission of the said complaint and in exercise of the powers under Section 56 and 57 of the Act as read with Regulation 6(4) of the Regulations, the 1st Respondent commenced investigations on the complaint.
19. The Respondents, they notified the Applicant of the complaint lodged against them by the 1st Interested Party vide a Letter of Notification of a Complaint dated 22nd November 2023 as is provided for under Regulation 11(1) of the Regulations. The Notification of complaint letter clearly spelt out the following:
a. The names and contacts of the parties therein; and
b. The detailed particulars of the complaint, which the 1st Respondent was made aware of at the time and a copy of the Complaint was provided to the Applicant.
20. It is the Respondents’ case that Notification clearly informed the Applicant that it needed to respond to the Complaint and provide relevant evidence in respect to their response within the stipulated timelines failure to which, the 1st Respondent would proceed to determine the Complaint as is allowed pursuant to Regulation 11(2) of the Rules.
21. The Respondents posited that the Notification met the threshold prescribed under the Regulations as it required the Applicant to furnish the Respondents with the following -
a) A response to the allegations made against the Applicant by the Interested Party and a contact person who can provide further details as regards the complaint;
b) Any relevant materials or evidence in support of their response above;
c) The legal basis relied upon to use the Interested Party's employment data to process a loan;
d) Whether the Interested Party was notified, and if he consented to the subsequent loan application; and
e) The mitigation measures adopted or being adopted to address the complaint to the satisfaction of the Interested Party and to ensure that such occurrence mentioned in the complaint do not take place again.
22. The Respondents contend that their notification was also in compliance with Regulation 11(3) of the Regulations as read with Form DPC 3 in the Schedule to the Regulations as it provided the options available for resolving the complaint which included mediation, negotiation and conciliation as alternative dispute resolution (ADR) and that the Applicant was either required to provide a response to the Complaint and/or proof of resolution of the complaint or application for ADR within 14 days from the date of receipt of the notification.
23. Further, it is their case that the Applicant was served with an original signed copy of the Notification of Complaint Letter dated 22nd November, 2023, which contained all the pages of the Notification of the Complaint and given an opportunity to seek further clarification in case the same was needed. If indeed the Applicant did not receive all the pages of the Notification of the complaint as claimed nothing stopped them from contacting the 1st Respondent through the emails provided and requesting for a complete copy of the Notification of the Complaint.
24. The Respondents argue that the Applicant's refusal and or ignorance to seek clarification on the alleged missing pages goes to show that they had no intentions of putting forth a response and supply the 1st Respondent with the requested information and as therefore, they cannot cry foul after a determination was delivered.
25. It is also further argued that pursuant to the investigations and in consonance with Regulation 14(1) and (2) of the Regulations, the 1st Respondent rendered a determination dated 15th January 2024 and the same was communicated to the Applicant on 19th January 2024 which was within seven (7) days as stipulated under Regulation 14 (4) of the Regulations.
26. On Procedural impropriety/unfairness the Respondents submit that in the case of Republic v Cabinet Secretary for Interior & Co-ordination of National Government & another; Ex parte Applicant: Peter Adiele Mmegwa & another [2020] eKLR the court held thus; -
“A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute are not followed or if the "rules of natural justice' are not adhered to. Decision makers must act fairly in reaching their decisions. This principle applies solely to matters of procedure, as opposed to considering the substance of the decision reached.
The term procedural impropriety was used by Lord Diplock in the House of Lords decision of Council of Civil Service Unions v. Minister for the CivilService027 to explain that a public authority could be acting ultra vires {that is, beyond the power given to it by statute} if it commits a serious procedural error. His Lordship regarded procedural impropriety as one of three broad categories of judicial review, the other two being illegality and irrationality
Procedural impropriety generally encompasses two things: procedural ultra vires, where administrative decisions are challenged because a decision-maker has overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. Lord Diplock noted that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice is a form of procedural impropriety.”
27. It is further submitted that Applicant has not met the conditions set to warrant the judicial review remedies as sought.
28. In Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR it was held thus:
“The role of the court in Judicial Review proceedings was well stated in Republic vs National Water Conservation & Pipeline Corporation & 11 Others where it was held that once a Judicial Review court fails to sniff any illegality, irrationality or procedural impropriety, it should down its tools forthwith.
Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature and hence not contravening the will of Parliament.”
29. The Respondents also place reliance on the cases of Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Ex parte Applicant: M'nyiri Ragwa; Njeru Kiririka (Interested Party) [2021] eKLR andRepublic v Public Procurement Administrative Review Board & another Ex parte Intertek Testing Services(EA)Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022] eKLR, quoted the case of Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300.
30. The Respondents argue that Applicant's application is an abuse of the court process as the same lacks in merit and therefore urge this Honourable Court upholds the Respondent's determination delivered on 15th January 2024 and consequently, dismisses the instant application with costs.
Analysis and Determination:
Following are the issues for determination:
1) Whether this court has jurisdiction to hear and determine the matter.
2) Whether the Applicant is entitled to the orders sought.
Whether this court has jurisdiction;
31. Section 9(2) and (4) of Fair Administrative Actions Act stipulates that:
“(2) The High Court or a subordinate court under Sub section (I) 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.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the Applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.”
32. Section 9 (3) The Fair Administrative Action Act 2015 states that:
“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 subsection (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.”
33. The Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] observed that;
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
34. In the Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 the court had this to state;
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
35. Article 165(3) (e) of the Constitution provides that, subject to clause (5), the High Court shall have any other jurisdiction, original or appellate, conferred on it by legislation.
36. The High Court has the jurisdiction to preside over appeals emanating from bodies like the Respondent. Section 64 of The Data Protection Act donates jurisdiction to the High Court in the following terms;
“A person against whom any administrative action is taken by the Data Commissioner, including in enforcement and penalty notices, may appeal to the High Court.”
37. The case of Dawda K. Jawara vs Gambia, held that:
“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ... the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
38. In Republic vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Exparte the National Super Alliance (NASA). This doctrine is now of esteemed juridical lineage in Kenya. The Court held that:
“while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricism of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.”
39. As the Court of Appeal acknowledged in the Shikara Limited Case, the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.
40. In electing to file the instant suit the Applicant failed to exhaust the available legislative redress mechanisms or dispute resolution options under The Data Protection Act and the applicant has to contend with the choices that it made.
41. The Applicant did not seek the leave of the court to be exempted from the application of the doctrine of exhaustion.
The Second issue:
42. The court cannot delve into the 2nd issue having found that the Court lacks jurisdiction.
On the issue of Costs:
43. The court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR held as follows;
In his work, Judicial Hints on Civil Procedure, 2nd Ed. (Nairobi; LawAfrica 2011) at page 94, Mr. Justice (Rtd) Kuloba observed:
“Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v. Lalji Bhimji and Shamji Jinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973.
Disposition.
44. The Applicant should have lodged an appeal to challenge the impugned decision by invoking Section 64 of The Data Protection Act.
45. This court lacks jurisdiction to preside over the Application.
Order;
The Application is dismissed with costs.
1) THAT an Order of CERTIORARI to remove into this Honourable Court and quash the Determination issued by the 1st Respondent dated 15th January 2024 in ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisi v Fin Kenya (Formerly TrustGro SCA Limited.
2) THAT an Order of PROHIBITION to prohibit and restrain the Respondents either by itself, agents, employees or whatsoever from taking steps, actions and measures to enforce the Determination dated 15th January 2024 in ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisiv Fin Kenya (Formerly TrustGro SCA Limited.
3) THAT an Order of MANDAMUS compelling the Respondents to readmit for fresh investigations the Interested Party’s complaint in strict compliance of the Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021.
4) THAT costs of this Application be provided for.
2. It is the Applicant’s case is that the Respondents did not comply with mandatory and material provisions of Rule 11 of Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021 in handling a complaint dated 22nd November 2023.
3. It is contended the 1st Respondent issued a determination on 15th January 2024 ODPC Complaint No. 2120 of 2023 Brian Mwalimu Volisi v Fin Kenya (Formerly TrustGro SCA Limited) declaring the Applicant having allegedly infringed the Interested Party’s rights under the Data Protection Act of 2019, and directed the Applicant to make financial restitution and compensation totaling Kshs. 753, 440.00 to the Interested Party and ordering for enforcement notice to be issued against the Applicant.
4. The Applicant posits that the determination emanated from proceedings commenced by the Respondents through a notification issued on 22nd November 2023 addressed to them which on the face of it was manifestly and materially irregular incomplete and contravened the provisions of Rule 11 of the Data Protection (Complaints Handling and Enforcement Procedures) Regulation 2021.
5. According to them the Notification was irregular as;
i. It was not in the prescribed form DPC 3
ii. It did not state the time line within which they were to respond.
iii. The notification did not offer options available for resolving the complaint including determining the complaint through alternative dispute resolution mechanisms as specified in the Data Protection Act and the Regulations.
6. It is further contended that the Respondents failed to carry out investigations as is provided for under Section 57 of the Data Protection Act Cap 411 C and Rule 13 and 14 of the Data Protection (Complaints Handing and Enforcement Procedures) Regulations 2021 resulting in a decision that was procedurally unfair.
7. The Applicants’ canvassed their application by way of written submissions dated 11th July, 2024.
8. The Applicant invokes Section 4(1), 4 (3) and 4 (4) of the Fair Administrative Action Act (Reviewed, 2022) provides that,
“Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.”
9. Section 4(3) of the Act provides:
“Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision-
a) prior and adequate notice of the nature and reasons for the proposed administrative action;
b) an opportunity to be heard and to make representations in that regard;
10. And Section 4 (4) of the Act dictates that:
“The administrator shall accord the person against whom administrative action is taken an opportunity to-
a) attend proceedings in person or in the company of an expert of his choice;
b) be heard;
c) cross-examine persons who give adverse evidence against him; and
d) request for an adjournment of the proceedings, where necessary to ensure a fair hearing.”
11. According to the Applicant, they were served with an incomplete Notification of Complaint letter which was also not paginated thus they had no way of knowing if any page was missing which rendered the resultant decision unfair.
12. Reliance is place in the case of Roma School Uthiru v Data Protection Commissioner; Muturi (Interested Party) [2024] KEHC 3927(KLR) as follows: -
“Notice is a matter of procedural fairness and an important component of natural justice. As such, information provided in relation to administrative proceedings must be sufficiently precise to put the individual on notice of exactly what the focus of any forthcoming inquiry or action will be.
In Msagha vs. Chief Justice & 7 Others Nairobi HCMCA no. 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553 it was held: “The Court observes firstly that the rules of natural justice “audi alteram partem” hear the other party, and no man/woman may be condemned unheard are deeply rooted in the English common law and have been transplanted by reason of colonialization of the globe during the hey-days of the British Empire. An essential requirement for the performance of any judicial or quasi-judicial function is that the decision makers observe the principles of natural justice. A decision is unfair if the decision-maker deprives himself of the views of the person who will be affected by the decision”
13. On the issue of costs, the Applicant prays that the Respondents bear the costs and invoke Section 27 of the Civil Procedure Act states:
“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event…”
[2] The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
1st and 2nd Respondents’ case;
14. The 1st Respondent is a body corporate created pursuant to Section 5 of the Data Protection Act, 2019 (hereinafter referred to as the Act) the Regulations.
15. Section 8 of the Act stipulates its functions being inter alia, receiving and investigating any complaints brought forth on infringement of the rights under the Act and pursuant to Section 9 of the Act, the Office has power to, inter alia, conduct investigations based on a complaint by a complainant, and have the same concluded within ninety days.
16. The Respondents posit that the Interested party lodged a complaint with them on 17th October 2023 vide email.
17. In the said complaint, the Interested party alleged that his rights had been infringed by the Applicant citing that the applicant had used his personal data, being his employment details, to fill a loan application without his consent.
18. The Office proceeded to undertake a preliminary review of the complaint after which, the same was admitted and entered in the Register of Complaints as ODPC Complaint No. 2120 of 2023 and upon admission of the said complaint and in exercise of the powers under Section 56 and 57 of the Act as read with Regulation 6(4) of the Regulations, the 1st Respondent commenced investigations on the complaint.
19. The Respondents, they notified the Applicant of the complaint lodged against them by the 1st Interested Party vide a Letter of Notification of a Complaint dated 22nd November 2023 as is provided for under Regulation 11(1) of the Regulations. The Notification of complaint letter clearly spelt out the following:
a. The names and contacts of the parties therein; and
b. The detailed particulars of the complaint, which the 1st Respondent was made aware of at the time and a copy of the Complaint was provided to the Applicant.
20. It is the Respondents’ case that Notification clearly informed the Applicant that it needed to respond to the Complaint and provide relevant evidence in respect to their response within the stipulated timelines failure to which, the 1st Respondent would proceed to determine the Complaint as is allowed pursuant to Regulation 11(2) of the Rules.
21. The Respondents posited that the Notification met the threshold prescribed under the Regulations as it required the Applicant to furnish the Respondents with the following -
a) A response to the allegations made against the Applicant by the Interested Party and a contact person who can provide further details as regards the complaint;
b) Any relevant materials or evidence in support of their response above;
c) The legal basis relied upon to use the Interested Party's employment data to process a loan;
d) Whether the Interested Party was notified, and if he consented to the subsequent loan application; and
e) The mitigation measures adopted or being adopted to address the complaint to the satisfaction of the Interested Party and to ensure that such occurrence mentioned in the complaint do not take place again.
22. The Respondents contend that their notification was also in compliance with Regulation 11(3) of the Regulations as read with Form DPC 3 in the Schedule to the Regulations as it provided the options available for resolving the complaint which included mediation, negotiation and conciliation as alternative dispute resolution (ADR) and that the Applicant was either required to provide a response to the Complaint and/or proof of resolution of the complaint or application for ADR within 14 days from the date of receipt of the notification.
23. Further, it is their case that the Applicant was served with an original signed copy of the Notification of Complaint Letter dated 22nd November, 2023, which contained all the pages of the Notification of the Complaint and given an opportunity to seek further clarification in case the same was needed. If indeed the Applicant did not receive all the pages of the Notification of the complaint as claimed nothing stopped them from contacting the 1st Respondent through the emails provided and requesting for a complete copy of the Notification of the Complaint.
24. The Respondents argue that the Applicant's refusal and or ignorance to seek clarification on the alleged missing pages goes to show that they had no intentions of putting forth a response and supply the 1st Respondent with the requested information and as therefore, they cannot cry foul after a determination was delivered.
25. It is also further argued that pursuant to the investigations and in consonance with Regulation 14(1) and (2) of the Regulations, the 1st Respondent rendered a determination dated 15th January 2024 and the same was communicated to the Applicant on 19th January 2024 which was within seven (7) days as stipulated under Regulation 14 (4) of the Regulations.
26. On Procedural impropriety/unfairness the Respondents submit that in the case of Republic v Cabinet Secretary for Interior & Co-ordination of National Government & another; Ex parte Applicant: Peter Adiele Mmegwa & another [2020] eKLR the court held thus; -
“A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute are not followed or if the "rules of natural justice' are not adhered to. Decision makers must act fairly in reaching their decisions. This principle applies solely to matters of procedure, as opposed to considering the substance of the decision reached.
The term procedural impropriety was used by Lord Diplock in the House of Lords decision of Council of Civil Service Unions v. Minister for the CivilService027 to explain that a public authority could be acting ultra vires {that is, beyond the power given to it by statute} if it commits a serious procedural error. His Lordship regarded procedural impropriety as one of three broad categories of judicial review, the other two being illegality and irrationality
Procedural impropriety generally encompasses two things: procedural ultra vires, where administrative decisions are challenged because a decision-maker has overlooked or failed to properly observe statutory procedural requirements; and common law rules of natural justice and fairness. Lord Diplock noted that "failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice is a form of procedural impropriety.”
27. It is further submitted that Applicant has not met the conditions set to warrant the judicial review remedies as sought.
28. In Republic v Public Procurement Administrative Review Board & 2 others Exparte Rongo University [2018] eKLR it was held thus:
“The role of the court in Judicial Review proceedings was well stated in Republic vs National Water Conservation & Pipeline Corporation & 11 Others where it was held that once a Judicial Review court fails to sniff any illegality, irrationality or procedural impropriety, it should down its tools forthwith.
Judicial intervention is posited on the idea that the objective is to ensure that the agency did remain within the area assigned to it by Parliament. If the agency was within its assigned area then it was prima facie performing the tasks entrusted to it by the legislature and hence not contravening the will of Parliament.”
29. The Respondents also place reliance on the cases of Republic v District Land Adjudication and Settlement Officer Maara Sub- County & 3 others; Ex parte Applicant: M'nyiri Ragwa; Njeru Kiririka (Interested Party) [2021] eKLR andRepublic v Public Procurement Administrative Review Board & another Ex parte Intertek Testing Services(EA)Pty Limited & Authentix Inc; Accounting Officer, Energy and Petroleum Regulatory Authority & another [2022] eKLR, quoted the case of Pastoli v Kabale District Local Government Council & Others (2008) 2 EA 300.
30. The Respondents argue that Applicant's application is an abuse of the court process as the same lacks in merit and therefore urge this Honourable Court upholds the Respondent's determination delivered on 15th January 2024 and consequently, dismisses the instant application with costs.
Analysis and Determination:
Following are the issues for determination:
1) Whether this court has jurisdiction to hear and determine the matter.
2) Whether the Applicant is entitled to the orders sought.
Whether this court has jurisdiction;
31. Section 9(2) and (4) of Fair Administrative Actions Act stipulates that:
“(2) The High Court or a subordinate court under Sub section (I) 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.
(4) notwithstanding sub section (3), the High Court or a subordinate court may, in exceptional circumstances and on application by the Applicant, exempt such person from obligation to exhaust any remedy if the court considers such exemption to being the interest of justice.”
32. Section 9 (3) The Fair Administrative Action Act 2015 states that:
“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 subsection (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.”
33. The Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] observed that;
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.
It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft. See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR. Nor can parties, by consent confer on a court power it does not have.”
34. In the Speaker of National Assembly v Njenga Karume [2008] 1 KLR 425 the court had this to state;
“In our view there is considerable merit.....that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”
35. Article 165(3) (e) of the Constitution provides that, subject to clause (5), the High Court shall have any other jurisdiction, original or appellate, conferred on it by legislation.
36. The High Court has the jurisdiction to preside over appeals emanating from bodies like the Respondent. Section 64 of The Data Protection Act donates jurisdiction to the High Court in the following terms;
“A person against whom any administrative action is taken by the Data Commissioner, including in enforcement and penalty notices, may appeal to the High Court.”
37. The case of Dawda K. Jawara vs Gambia, held that:
“A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed effective if it offers a prospect of success and is found sufficient if it is capable of redressing the complaint [in its totality] ... the Governments assertion of non-exhaustion of local remedies will therefore be looked at in this light ...a remedy is considered available only if the applicant can make use of it in the circumstances of his case."
38. In Republic vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Exparte the National Super Alliance (NASA). This doctrine is now of esteemed juridical lineage in Kenya. The Court held that:
“while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricism of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies.”
39. As the Court of Appeal acknowledged in the Shikara Limited Case, the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake.
40. In electing to file the instant suit the Applicant failed to exhaust the available legislative redress mechanisms or dispute resolution options under The Data Protection Act and the applicant has to contend with the choices that it made.
41. The Applicant did not seek the leave of the court to be exempted from the application of the doctrine of exhaustion.
The Second issue:
42. The court cannot delve into the 2nd issue having found that the Court lacks jurisdiction.
On the issue of Costs:
43. The court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR held as follows;
In his work, Judicial Hints on Civil Procedure, 2nd Ed. (Nairobi; LawAfrica 2011) at page 94, Mr. Justice (Rtd) Kuloba observed:
“Costs are [awarded at] the unfettered discretion of the court, subject to such conditions and limitations as may be prescribed and to the provisions of any law for the time being in force, but they must follow the event unless the court has good reason to order otherwise: Chamilabs v. Lalji Bhimji and Shamji Jinabhai Patel, High Court of Kenya, Civil Case No. 1062 of 1973.
Disposition.
44. The Applicant should have lodged an appeal to challenge the impugned decision by invoking Section 64 of The Data Protection Act.
45. This court lacks jurisdiction to preside over the Application.
Order;
The Application is dismissed with costs.