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ELRCStruck OutPetition dated 27.11.2024; Application by Notice of Motion dated 27.11.2024

Ndururi v Office of the Data Protection Commissioner & 2 others; Office of the Attorney General & 3 others (Interested Parties) (Petition E193 of 2024) [2025] KEELRC 822 (KLR)

Employment and Labour Relations Court
14 March 2025
1,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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If you lose at the Data Protection Commissioner in Kenya, you must appeal to the High Court under section 64 before trying a constitutional petition.

What this practically means

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Executive summary

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The petitioner, a former sales representative of Twiga Foods Limited, filed a petition and notice of motion seeking temporary and mandatory injunctions restraining Twiga and IBM from using, distributing or storing his image, and an exemption under section 9(4) of the Fair Administrative Action Act from exhausting the appellate remedy under section 64 of the Data Protection Act. He alleged that in April 2018 his photograph was taken without informed consent, posted on Flickr as a licensable image, and used in a CNN advertising feature and widely across social media, violating his rights to privacy, dignity and property, and that the ODPC's decision of 13 May 2024 denying his complaint was rendered per incuriam and without a fair hearing. The 3rd respondent filed a preliminary objection on jurisdiction, limitation and abuse of process; the 2nd respondent filed grounds of opposition contending the petition was a disguised appeal against the ODPC decision. The court held that the statutory appeal under section 64 of the Data Protection Act is the elaborate procedure for challenging the Data Commissioner's decision and that no ground was established to defeat it, so the petition was amenable to striking out. Objections based on want of an employment relationship and on limitation failed because the existence of an employment relationship and the continuance of the injury were disputed factual matters requiring evidence. The petition was struck out, the application dismissed, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petition should be struck out for failure to exhaust the appellate remedy under section 64 of the Data Protection Act
  2. 2.Whether the court lacks jurisdiction for want of an employer-employee relationship between the petitioner and the 3rd respondent
  3. 3.Whether the petition is time barred under sections 89 and 90 of the Employment Act given the alleged continuing injury
  4. 4.Whether the petitioner qualifies for exemption under section 9(4) of the Fair Administrative Action Act from exhausting the section 64 appeal

Key legal issues

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01

Exhaustion of statutory appellate remedy under section 64 of the Data Protection Act

Holding

The petition was amenable to striking out because the petitioner must appeal to the High Court under section 64 rather than file a constitutional petition.

Reasoning

The court found that the petitioner sought judicial review orders of certiorari against the Data Commissioner's determination, and that the statutory appeal under section 64 was the elaborate procedure for challenging that decision on both merits and procedure. No ground was established to defeat the statutory remedy or to justify exemption under section 9(4) of the Fair Administrative Action Act, so the preliminary point succeeded.

p. 6
02

Jurisdiction for want of employer-employee relationship

Holding

The preliminary objection based on absence of an employment relationship with the 3rd respondent failed because the existence of the relationship is a disputed matter of fact requiring evidence.

Reasoning

The court held that whether the parties were in a contract of employment and the involvement of the 2nd respondent were factual matters in dispute requiring evidence at a full hearing; such disputed facts cannot ground a proper preliminary objection on jurisdiction.

p. 5
03

Limitation and continuing injury

Holding

If the injury is continuing as alleged, limitation under section 90 of the Employment Act has not lapsed, and whether the injury is continuing is a disputed fact for a full hearing.

Reasoning

The court accepted the principle that for a continuing injury the 12-month limitation period runs from cessation of the injury. Since the petitioner alleged the use of his image persists, time had not run out on that premise; but because the continuance of the injury was disputed, the point was not a proper preliminary objection and would go to full trial.

p. 5

Legal principles established

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  • The appeal to the High Court under section 64 of the Data Protection Act is the elaborate statutory procedure for challenging the Data Commissioner's decision on both merits and procedure, and must be exhausted before resort to a constitutional petition.
  • A preliminary objection founded on disputed matters of fact requiring evidence is not a proper preliminary point.
  • Under section 90 of the Employment Act, limitation for a continuing injury runs 12 months from cessation of the injury.

Court orders

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  1. 1.The petition is struck out
  2. 2.The application dated 27.11.2024 is dismissed
  3. 3.Each party to bear own costs of the application and the petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22(1), 23(1) and 162(1),(2)(a) of the Constitution; Employment and Labour Relations Act, 2007

Relief refused

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Temporary injunction restraining the 2nd and 3rd respondents from further using the petitioner's image

The petition was struck out for failure to exhaust the statutory appellate remedy under section 64 of the Data Protection Act

p. 6

Mandatory injunction compelling erasure of the petitioner's image

The application failed because the petition was an abuse of court process

p. 6

Exemption under section 9(4) of the Fair Administrative Action Act from exhausting the section 64 appellate remedy

No established ground to defeat the statutory appeal procedure

p. 5

Costs

Each party to bear own costs of the application and the petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court returns that the appellate procedure is the elaborate statutory procedure for challenging the decision of the Data Commissioner both on merits and procedure. There is no established ground to defeat the statutory ground.
p. 5Exhaustion of statutory remedy
In conclusion the petition is hereby struck out and the application dismissed with orders each party to bear own costs of the application and the petition.
p. 6Final orders
Further, the issue whether the injury is continuing as a disputed matter of fact would need to go on full hearing and therefore not qualified as a proper preliminary point.
p. 5Preliminary objections and disputed facts
under section 90 of the Employment Act, 2007 the time of limitation for a cause of action for a continuing injury is 12 months from cessation thereof.
p. 5Limitation for continuing injury

Issues in the judgment

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minor

The judgment itself notes that the Employment and Labour Relations Act, 2007 as cited by the applicant 'appears not to exist'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndururi v Office of the Data Protection Commissioner & 2 others; Office of the Attorney General & 3 others (Interested Parties) (Petition E193 of 2024) [2025] KEELRC 822 (KLR)", Case Analysis (2025). Petition dated 27.11.2024; Application by Notice of Motion dated 27.11.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/822/eng@2025-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.