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)
The bottom line
#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
#Executive summary
#Key legal issues
#Exhaustion of statutory appellate remedy under section 64 of the Data Protection Act
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.
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.
Jurisdiction for want of employer-employee relationship
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.
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.
Limitation and continuing injury
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.
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.
Legal principles established
#- 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
#- 1.The petition is struck out
- 2.The application dated 27.11.2024 is dismissed
- 3.Each party to bear own costs of the application and the petition
- Jurisdiction invoked
- Articles 22(1), 23(1) and 162(1),(2)(a) of the Constitution; Employment and Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.