https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8533

Chelete Credit Ltd v Office of the Data Protection Commissioner & another (Civil Appeal E882 of 2025) [2026] KEHC 8533 (KLR) (Civ) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8533 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E882 of 2025 AC Mrima, J May 22, 2026 Between Chelete Credit Limited Applicant and Office of the Data Protection Commissioner 1st Respondent Davies Kiarie Chege 2nd Respondent Ruling Background: 1.The dispute before this Court originates from a complaint lodged by the 2nd Respondent, Davies Kiarie Chege, against Chelete Credit Limited, the Appellant/Applicant herein, before The Data Protection Commissioner, 1st Respondent herein, in ODPC Complaint No. 0059 of 2025 (hereinafter referred to as ‘the Complaint’). 2.The 2nd Respondent claimed that the Appellant sent him unsolicited and abusive text messages regarding a loan for which he had not consented to be a guarantor. On 13th April 2025, the 1st Respondent found the Appellant liable for breaching the Data Protection Act. It awarded the 2nd Respondent Kshs. 250,000/- in compensation. 3.The Appellant then sought to review the 1st Respondent’s determination in vain. As a result, the Applicant filed the instant application, which is subject of this ruling. The application was heard by way of written submissions. The Application: 4.The application is by way of a Notice of Motion dated 26th May 2025, instituted pursuant to Section 63(c) of the Civil Procedure, Order 40 Rule 1(a), (b), 2, 3, 4 and Order 51 Rule 1 and 3 of the Civil Procedure Rules. The Applicant sought the following orders: -i.Spent.ii.That the Honourable Court be pleased to Order allowing the Applicant/Appellant to file their Appeal out of time against the determination notice issued in ODPC Complaint No. 0059 of 2025 - Davies Kiarie vs. Chelete Credit Limited.iii.That the Honourable Court be pleased to order that pending the hearing and determination of this application a temporary injunction do issue restraining the Respondents... from in any way whatsoever from enforcing the Determination and Enforcement notice issued in ODPC Complaint No. 0059 of 2025.iv.That the Honourable Court be pleased to issue any further orders it deems just and equitable. 5.The application was supported by the affidavit of Cao Fenglei, a Director of the Appellant. It was his case that the Applicant was never served at its physical address, violating the right to a fair hearing under Article 47 of the Constitution and the Fair Administrative Action Act. The Appellant contended it only became aware of the ODPC’s determination on 23rd April 2025, when the 2nd Respondent visited its offices to demand payment. He further deposed that internal investigations revealed that the ODPC's emails notifying them of the complaint had been filtered into a spam folder. He posited that the delay was not deliberate and that the intended appeal raises triable issues regarding the evidence used by the ODPC. The Submissions 6.The Applicant urged its case further through written submissions dated 18th November 2025. It reiterated its primary argument that its right to a fair hearing under Article 50(1) and right to fair administrative action under Article 47 of the Constitution were violated by the 1st Respondent. To that end, it cited the decision in Vishva Stone Suppliers Company Limited -vs- RSR Stone [2006] Limited [2020] eKLR to assert that the right to be heard is so basic that a decision reached in violation of it must be nullified, even if the same result might have been reached had the party been heard. It is contended that the Data Commissioner’s determination was arrived at without proper notice, rendering the entire process procedurally unfair. 7.Regarding the extension of time, the Applicant submitted that the delay was neither deliberate nor inordinate. It argued that the notification of the complaint and the subsequent determination were automatically filtered into a spam folder, a fact only discovered during an internal audit on 23rd April 2025 after the 2nd Respondent demanded payment. The Applicant asserted that despite having a registered physical office, the ODPC made no attempt at physical service, which they argued is a requirement for procedural fairness under Section 56 of the Data Protection Act and Section 4(3) of the Fair Administrative Action Act. 8.In its quest for extension of time, the Applicant relied on the case of Fahim Yasin Twaha -vs- Timamy Issa Abdalla & 2 Others [2015] eKLR, where the principles considered include the reason for delay, absence of prejudice to respondents, and whether the application was brought without undue delay. The Applicant further drew support from the case of Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2EA 331 to emphasize that the discretion to extend time is essentially discretionary and should account for the chances of the appeal succeeding. 9.On the merits of the intended appeal, the Applicant argued that the ODPC's findings were based on insufficient and unverified evidence. Specifically, they challenged the reliance on a blurred screenshot and an unverified mobile application called “DCREDIT,” which the Applicant denied having any relationship with. It further contended there was no cogent proof linking its Playbill number to the sender of the allegedly offending messages. 10.Finally, in urging the Court for an injunction, it was its case that it would prevent the appeal from being rendered illusory. It argued that enforcement would cause not only financial loss but irreparable regulatory and reputational damage. It relied on the case of Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] KEELC 2424, arguing that irreparable injury is one that cannot be adequately compensated by damages alone. 11.Consequently, the Applicant urged this Court to allow the application as prayed. The 1st Respondent’s case: 12.The Office of the Data Protection Commissioner vehemently opposed the application through undated written submissions. It was its case that the Applicant’s excuse regarding spam filters is an attempt to rely on its own internal administrative failures. It argued that for a corporate entity, the management of official communication channels, including the regular monitoring of spam folders, is a basic administrative duty. 13.The 1st Respondent relied on the case of Habib Bank AG Zurich -vs- Eugene Marion Yakub [2006] eKLR for the proposition that a party cannot rely on their own inaction or internal failures as a ground for extension of time. The 1st Respondent further contended that there had been an unexplained delay even after the Applicant admitted to discovering the determination on 23rd April 2025. It argued that the Applicant waited another month to file the present application, and that time spent writing letters for review to a regulator that is functus officio did not absolve the duty to adhere to statutory appeal timelines. 14.Regarding the prayer for a temporary injunction, it submitted that the application does not to satisfy the three-pillar test established in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358. It contended that there was no irreparable injury demonstrated since the award of Kshs. 250,000/- is a quantifiable financial sum and, by law, financial loss does not constitute irreparable harm. 15.It further referred the Court to the precedent in Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others [2014] eKLR to advance the position that if damages are recoverable the injury is not irreparable. 16.On the limb of balance of convenience, the 1st Respondent maintained that the 2nd Respondent should not be deprived of the fruits of his judgment. It submitted that there was no evidence to suggest that the 2nd Respondent would be unable to refund the amount should the appeal be successful. The 2nd Respondent’s case: 17.Davies Kiarie Chege challenged the application through his Replying Affidavit sworn on 22nd October 2025. He raised the objection that the prayer for a temporary injunction is not contemplated under Order 42 of the Civil Procedure Rules. 18.On the merits of the application, he deposed that the Appellant’s application is a non-starter. He claimed that the spam email excuse is an afterthought intended to hoodwink the Court since the Applicant was served with the complaint via email and admitted to it in their own correspondence. Crucially, the 2nd Respondent highlighted the Appellant’s continued indolence. He deposed that even after the 1st Respondent’s decision, the Appellant sat on its rights despite being served with Misc. Civil Application No. E974 of 2025 seeking ratification of the award. He referred to annexure marked DK-1, the Decree dated 31st July 2025 ratifying the ODPC award, Exhibit DK-2, an Affidavit of Service showing the Applicant was served with the ratification application via email on 8th July 2025, Exhibit DK-3, a Garnishee Order Nisi issued on 19th September 2025. Exhibit DK-4, a Replying Affidavit from Safaricom PLC confirming they have set aside Kshs. 255,000 from the Applicant’s pay bill Account 4136163. 19.The 2nd Respondent concluded that the Appellant’s intended appeal raised no plausible grounds and that allowing the application would unjustly prejudice him, as he had followed all legal procedures while the Appellant remained indolent. The Submissions: 20.In his written submissions dated 27th November 2025, the 2nd Appellant argued that extending time is an equitable remedy and a matter of Court’s discretion, not a right. It was his submission that even if the Appellant discovered the matter in April 2025, they did not file the application until 26th August 2025, leaving a four-month delay entirely unexplained. He further argued that service via email was legally perfected under the Civil Procedure (Amendment) Rules, 2020, and that the spam folder claim is a baseless afterthought intended to hoodwink the Court. 21.In challenging the quest for injunction, the 2nd Respondent submitted that the request for a temporary injunction is a non-starter because such a remedy is not contemplated under Order 42 of the Civil Procedure Rules. He maintained that the intended appeal is frivolous and an abuse of the Court process because the Appellant chose not to participate in the original ODPC proceedings despite proper service. 22.Finally, the 2nd Respondent submitted that the application has been overtaken by events because execution has already occurred. It was his case that a garnishee has already acted upon a garnishee order nisi, as evidenced by the annexures. Consequently, he requested the Court to dismiss the application with costs. Analysis & Determination: 23.Having appreciated the nature of the application before this Court, and on the basis of the record, the following issues arise for determination: -i.Whether the application meets the threshold for the extension of time to file the appeal.ii.In the event [i] above is answered in the affirmative, whether the application meets the criteria for an injunction. 24.This Court will now address the above issues.(a)Whether the application meets the threshold for the extension of time to file the appeal: 25.An aggrieved party’s right of appeal on a matter emanating from the ODPC is guaranteed by Section 64 of the Data Protection Act. It provides as follows;64.Right of appealA person against whom any administrative action is taken by the Data Commissioner, including in enforcement and penalty notices, may appeal to the High Court. 26.Whereas Section 58 of the Data Protection Act as read with Regulations 17 and 19 of The Data Protection (Complaints Handling Procedure and Enforcement) Regulations expressly provide for the timelines within which to lodge an appeal against an Enforcement Notice, the Data Protection Act and the regulations thereunder are silent on the timelines regarding scenarios such as the one before this Court. In the premise, this Court will make recourse to the Civil Procedure Act and the Rules therein. 27.Section 79G *of the Civil Procedure Act provides as follows;79G. Time for filing appeals from subordinate courtsEvery appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 28.The jurisdiction of this Court to extend time is discretionary. Such discretion must be exercised judicially. The guiding principles were settled in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2EA 331 and affirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat -vs- IEBC & 7 Others [2014] eKLR where it was observed thus: -Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it. 29.The Supreme Court in Nicholas Kiptoo Korir arap Salat -vs- IEBC and 7 Others case [supra] articulated the principles applicable in an application for leave to appeal out of time. It observed as follows: -…. The underlying principles a Court should consider in exercise of such discretion should include:a.Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;c.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case by case basis;d.Whether there is a reasonable reason for the delay. the delay should be explained to the satisfaction of the court;e.Whether there will be any prejudice suffered by the respondent if the extension is granted;f.Whether the application has been brought without undue delay. 30.The 1st Respondent rendered its decision on 13th April 2025. According to Section 79G of the Civil Procedure Act, the Appellant had until 12th May 2025 to institute an appeal. However, the plea to lodge the appeal out of time was instituted on 26th May 2025. It represents a delay of 14 days. While the 1st Respondent rightly noted that administrative diligence is required, this Court is alive to the reality of automated spam filters, being a peculiar fact of modern digital practice. Given that the 14-day delay is not inordinate, and appreciating that the right of appeal is a strong constitutional right, shutting out an Appellant on a technicality of a spam filter would be disproportionate, especially where the Appellant attempted to engage the regulator for review as early as 28th April 2025. 31.This Court finds that the Appellant has satisfactorily explained the circumstances of the delay to warrant a favourable exercise of discretion. The prayer for extension of time is, hence, merited.(b)Whether the application meets the criteria for an injunction: 32.To succeed on this limb, the Appellant must surmount the three sequential hurdles established in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358 namely; a prima facie case with probability of success, the incidence of irreparable injury and that the balance of convenience tilts in its favour. 33.The intended appeal challenges the evidentiary threshold of the 1st Respondent’s findings. The use of unverified screenshots to award damages raises a prima facie case of procedural and substantive fairness under Article 47 of the Constitution. There is also the aspect of denial of a fair hearing. If the Appellant can prove that service via a single, unacknowledged email, which landed in a spam folder, was insufficient under Section 56 of the Data Protection Act, then that may have a serious bearing on the determination. 34.As regards the irreparable injury, it is common ground that financial loss is generally not considered irreparable because it is quantifiable and refundable. However, the Appellant’s contention that the harm extends to regulatory and reputational consequences, which cannot be fully cured by a monetary refund, is not far-fetched. Reputational damage to a financial institution has far reaching implications that cannot adequately be compensated by damages. 35.Finally, on the balance of convenience, since there is in no doubt regarding the first two requirements, this Court finds this limb in favour the Appellant. 36.In sum, the application is successful. Disposition: 37.As I come to the end of this ruling, I wish to apologize to the parties for the late delivery of this decision which was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 38.Finally, the Notice of Motion dated 26th May 2025 is allowed and the following orders hereby issue as follows: -(a)Leave is hereby granted to deem the Memorandum of Appeal dated 24th May 2025 as being properly on record.(b)An injunction hereby issues restraining the 2nd Respondent from levying execution on the determination in ODPC Complaint No. 0059 of 2025 pending the hearing and determination of this appeal. For clarity, the funds currently held by the Garnishee, Safaricom PLC, pursuant to the Order Nisi in HCC Misc. Application No. E974 of 2025 shall remain in the special utility account and shall not be released to the 2nd Respondent until the appeal is heard and determined or pursuant to an Order of this Court.(c)Since the Record of Appeal is already filed by the 1st Respondent, the appeal is hereby admitted to hearing, and by way of written submissions.(d)The Appellant shall, therefore, file and serve written submissions within 14 days of this Order.(e)Once served, the Respondents shall file and serve written submissions within 14 days of service.(f)Highlighting of submissions on a date to issue.(g)Costs of this application shall be in the cause.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Ms. Mwongera, Learned Counsel for the Appellant/Applicant.No appearance for, Learned Counsel for the 1st Respondent.Mr. Chiuri, Learned Counsel for the 2nd Respondent.Michael/Amina – Court Assistants.