| Authority: | ODPC - Kenya |
|---|---|
| Jurisdiction: | Kenya |
| Relevant law: | Legal Provisions Reviewed |
| Type: | Complaint |
| Outcome: | Violation |
| Started: | 11 April 2025 |
| Decided: | 19 July 2025 |
| Published: | Yes |
| Fine: | KES.250,000 |
| Parties: | Cherry Fiona Mwendwa vs. Acceler Global Logistics |
| Case No.: | 0556 of 2025 |
| Appeal: | N/A |
| Original Source: | ODPC |
| Original contributor: | MZIZI Africa |
Cherry Fiona Mwendwa complained Acceler Global Logistics used her image on its tracking system without consent, ignoring a 2021 cease-and-desist letter. The ODPC found Acceler violated her right to object and unlawfully processed her data. Consequently, Acceler was ordered to pay KES 250,000 compensation.
The Complainant, Cherry Fiona Mwendwa, alleged that the Respondent used her partial image on its internal "track and trace" system starting in 2021 without her consent. She asserted that she had issued a cease-and-desist letter on 1st November 2021 instructing the company to remove the image, but it remained in use long after the termination of her employment. She argued that the image, while partial and translucent, was still identifiable by third parties and was used by the Respondent to secure commercial advantages, such as in promotional materials and tenders. Consequently, she claimed the continued use caused her emotional distress and reputational harm.
Acceler Global Logistics argued that the Complainant had initially consented to the use of her image during her employment. The Respondent maintained that the image was translucent, unidentifiable, and only visible to internal users and existing customers rather than the general public. They further contended that the prolonged display was an inadvertent oversight rather than a result of malice or willful neglect. The Respondent stated that they removed the image immediately upon receiving a letter from the Complainant's advocate in July 2024, offered an apology, and insisted the image held no commercial value for their business.
The Office of the Data Protection Commissioner (ODPC) found that the Complainant had validly exercised her right to object to the processing of her data via her November 2021 letter. The Respondent was obligated to honour this request but instead disregarded it for several years, which constituted a direct violation of Section 26(c) of the Act.
Regarding the allegation of commercial use, the ODPC found that because the image was only accessible to internal staff and existing customers, it did not meet the legal threshold for "processing for commercial purposes" under Section 37. However, the ODPC determined that the Respondent failed to meet the burden of proof to show they had the requisite consent to continue processing the data for purposes beyond those originally stated at the time of collection.
In the final determination, the Data Commissioner ruled as follows: