Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The court dismissed Allen Waiyaki Gichuhi's application challenging the ODPC's refusal to admit a complaint about a data breach by a former employee. It ruled the matter fell under the Advocates Act, judicial review was inappropriate without seeking leave, and an appeal process under the Data Protection Act was available.

Facts

This case concerns a complaint lodged with the Office of the Data Protection Commissioner (ODPC). The applicants, Allen Waiyaki Gichuhi and his law firm, alleged that a former employee had shared confidential client information with a third party without consent. They sought a declaration from the ODPC that the respondents had breached their right to privacy and an order for compensation.

<aside> ➡️

This an appeal against the ruling of the ODPC in Allen Waiyaki Gichuki & Anor vs. Florence Mathenge & Another - ODPC Complaint No. 667 of 2022 (2) Final Ruling

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The ODPC declined to admit the complaint, stating that it did not fall within its mandate under the Data Protection Act (DPA).

The ODPC found that the complaint was primarily about the breach of advocate-client privilege and confidentiality, matters falling under the jurisdiction of the Advocates Act, not the DPA.

The documents submitted as evidence were labelled as the property of the law firm, which, as a juristic person, is not a "data subject" under the DPA. While one document contained personal data of a client, that client was not a complainant and was not represented by the applicants.The applicants, although natural persons, did not allege or provide evidence of unlawful processing of their personal data.

The applicants sought judicial review of the ODPC's decision, arguing that their right to fair administrative action had been violated. However, the High Court struck out their application, finding it to be misconceived and an abuse of process for two key reasons:

1. The proper recourse for the applicants was to appeal the ODPC's decision, as provided for in Section 64 of the DPA. The court emphasized that judicial review is not a substitute for an appeal where statutory provisions for an appeal exist.
2. The application for judicial review was filed without obtaining the necessary leave of the court. The court reiterated the mandatory nature of obtaining leave before filing for judicial review, citing the Law Reform Act and the Civil Procedure Rules.

Holding

The High Court ultimately struck out the applicants' application for judicial review, declaring it misconceived and an abuse of the court's process.