https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7338

**REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI LAW COURTS JUDICIAL REVIEW DIVISION HCJR E072 OF 2025** **REDEMPTA AKOTH AGWANDA ............................. APPLICANT** **VERSUS** **OFFICE OF THE DATA PROTECTION COMMISSIONER ......................................................................... RESPONDENT** **JUDGMENT** 1. The Applicant moved this Court by Notice of Motion dated 13th March 2026 seeking orders of certiorari to quash the Respondent’s decision declining to admit her complaint and directing her to pursue the matter before the Directorate of Criminal Investigations, and an order of mandamus compelling the Respondent to admit and determine the complaint. Specifically, the Applicant prayed for orders that: 2. *An Order of Certiorari be and is hereby issued to remove into this Honourable Court and quash the decision of the Respondent declining to admit the Applicant’s Complaint and recommending that the Applicant pursue the matter before the Directorate of Criminal Investigations.* 3. *An Order of Mandamus be and is hereby issued compelling the Respondent to admit and determine the Applicant’s Complaint in accordance with the provisions of the Data Protection Act, 2019* 4. The Application was supported by grounds contained in the Statutory Statement of 12th September 2025 and the verifying affidavit of Redempta Akoth Agwanda dated 13th March 2026. 5. The Applicant contends that her personal data was irregularly used by Family Bank Limited to register a charge over her matrimonial property without her consent, and that a forged spousal consent was relied upon. The Applicant averred that on or about 13th August 2020, Family Bank Limited, irregularly used the Applicant’s personal data, specifically her national identification card and details and purported spousal consent, to support the registration of a Charge over her matrimonial property, without her knowledge or consent. 6. That the Applicant, upon discovery of this misuse, lodged a formal Complaint with the Respondent pursuant to Sections 56–62 of the Data Protection Act, 2019. She annexed a forensic report as proof that the said spousal consent was forged to the complaint. Upon lodging a complaint with the Respondent under the Data Protection Act, the Respondent declined to admit the complaint and referred her to the Directorate of Criminal Investigations. 7. The Applicant filed submissions dated 1st April 2026 contending that her complaint disclosed some aspects of criminality but that did not oust the jurisdiction of the Respondent as both criminal and administrative sanctions can exist simultaneously. She submitted that the Respondent acted *ultra vires* and abdicated its statutory duty, thereby violating her right to fair administrative action. 8. The Respondent opposed the Application vide the Replying affidavit of Oscar Onyango Otieno, Senior Deputy Data Commissioner. It was averred that the Applicant’s complaint fell out of the jurisdiction of the Respondent on the basis of the element forged signature hence the decision to refer the matter to the Directorate of Criminal Investigations. 9. The Respondent further averred further that the Applicant failed to exhaust all the available remedies before seeking judicial review of the decision of the Respondent. They maintained that the Applicant had failed to demonstrate any exceptional circumstance that would excuse her from application of the doctrine of exhaustion 10. In their written submissions dated 2nd April 2026, the Respondents submitted on the issues raised in the Applicant’s affidavit and opined that the Applicant ought to have appealed the decision of the Respondent instead of seeking judicial review. The Respondents held that a cursory review of the Applicant's grounds and the list of annexures reveal a copy of the allegedly forged ‘spousal consent’ relied upon to register a charge together with a forensic document examiner's report. That these reflect conflicting factual positions that cannot be resolved on affidavit evidence and require direct evidence and cross examination. 11. Counsel for the Respondent placed reliance on the case of **Saisi & 7 others v Director of Public Prosecutions & 2 others [2023] KESC 6 (KLR),** inwhich the Court held that judicial review is not intended to be a full-fledged inquiry into the merits of a matter. 12. Based on the above arguments, Counsel urged that the Application be dismissed with costs. 13. Having carefully considered the application together with the parties’ pleadings and rival submissions through the Counsel for the parties, I have isolated one issue as commending itself for determination namely: *Whether this Court was properly moved by way of judicial review.* 14. It is trite that jurisdiction is everything without which a court cannot act or move one more step as was held in **Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd (1989) KLR 1.)** The same principle was espoused by the Supreme Courtin **Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Ltd & 2 Others [2012] eKLR**, where it was stated that: *“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”* 1. In the instant case, it was not disputed that the Respondent carried out its own investigations on the complainant’s initial complaint and found that the said complaint, as presented, disclosed matters that fell outside the Respondent’s jurisdiction leading to the email subject of this Application. 2. The Office of the Data Protection Commissioner is established under Section 5 of the [**Data Protection Act, 2019**](https://new.kenyalaw.org/akn/ke/act/2019/24). Section 8 sets out the functions of the office as follows: - *8.Functions of the Office* *(1) The Office shall—* *(a)oversee the implementation of and be responsible for the enforcement of this Act;* *…..* *(c)exercise oversight on data processing operations, either of own motion or at the request of a data subject, and verify whether the processing of data is done in accordance with this Act;* *…..* *(f)receive and investigate any complaint by any person on infringements of the rights under this Act;* 1. The powers of the Data Commissioner are further encapsulated in Section 9 to include ***“conducting investigations on own initiative, or on the basis of a complaint made by a data subject or a third party….”*** Accordingly, there is no doubt that Respondent has a duty to receive and investigate complaints as outlined above in the Act. 2. Before considering the parties’ respective submissions, I have to deal with a preliminary issue which may as well determine the fate of the applicant’s application. This issue is whether the applicant could approach this Honourable Court by way of judicial review. This is an issue that calls for the court’s determination because Section 64 of the Data Protection Act provides for a right of appeal to the High Court against decisions of the Data Protection Commissioner. 3. Further, where a statute provides a clear procedure for redress, that procedure must be followed as was held in **Speaker of the National Assembly v Karume No. NAI 92 of 1992 (1992).** The Respondent’s impugned decision is an administrative action within the context of section 64 of the Data Protection Act. It follows that the respondent’s decision of 13 March 2025 being of the character described in section 64 was a decision subject to an appeal and not to judicial review proceedings as argued by the Applicant. I say so because where the statute expressly provides for an appeal to this Honourable Court as a means of challenging a decision of a public body authority, person or tribunal, it is not open to an applicant, in those circumstances, to invoke the judicial review jurisdiction of the court. 4. The court in **Swara Acacia Lodge v Office of the Data Protection Commissioner & another [2025] KEHC 7 (KLR)** cited with approval the commentary by David Foulkes in his book Foulkes Administrative Law, 7th Edition. Citing the case of Customs and Excise Commissioners versus J.H. Corbitt (Numismatists) Ltd (1981) AC 22, (1980) 2 2ALL ER 72, the learned author noted as follows: *“It is to be noted that an appeal lies from, whether to an appellate tribunal or to a court of law, only when and to the extent that statute so provides, and the powers of the appeal body to review, reconsider etc. the decision of the tribunal likewise depend on the statute. To be contrasted with appeal is judicial review. The decision of tribunals, as bodies exercising judicial functions, have always been subject to review by the courts (that is, to judicial review) by means of the order of certiorari. This enables the court to quash a decision on certain grounds. Whereas appeal lies only when and to the extent that statute provides, the court’s common law power of judicial review exists unless it is take away or limited by statute. Thus, where no appeal to the court is provided by statute the only possible challenge in the courts is by way of judicial review…” (at p.150-151). (Emphasis added).* 1. And no doubt this was the principle applied by Lord Wright in **General Medical Council versus Spackman (1943) AC627**, at 640 where he stated as follows: *“I have observed that Parliament has not provided for any appeal from the decisions of the council. The only control of the court to which the council is subject (apart from proceedings by way of mandamus) is the power which the court may exercise by way of certiorari. Certiorari is not an appellate power.”* 1. Regarding mandamus, in Republic **vs. Principal Secretary, Ministry of Internal Security & Another, Ex-Parte Schon Noorani & Another [2018] KEHC 9433 (KLR),**the court set out the threshold for Mandamus as follows: “*29. Mandamus is an equitable remedy that serves to compel a public authority to perform its public legal duty, and it is a remedy that controls procedural delays. The test for mandamus is set out in Apotex Inc. vs. Canada (Attorney General), [23] and, was also discussed in Dragan vs. Canada (Minister of Citizenship and Immigration).* *[24] The eight factors that must be present for the writ to issue are:-* *(i) There must be a public legal duty to act;* *(ii) The duty must be owed to the Applicants;* *(iii)There must be a clear right to the performance of that duty, meaning that:* *(a)The Applicants have satisfied all conditions precedent; and;* *(b)There must have been:* *1.A prior demand for performance;* *2.A reasonable time to comply with the demand unless there was outright refusal; and* *3.An express refusal, or an implied refusal through unreasonable delay.* *(iv)No other adequate remedy is available to the Applicants* *(v)The Order sought must be of some practical value or effect;* *(vi)There is no equitable bar to the relief sought;* *(vii)On a balance of convenience, mandamus should lie.”* 1. Thus, judicial review only sets in if parliament has not, by statute, provided for an appeal. By its very nature, judicial review comes into play where there is no other alternative form of remedy that is as convenient, beneficial and effective. 2. The Court of Appeal has held in the **Speaker of the National Assembly v. Karume, Civil Application No. NAI 92 OF 1992** that where there is a clear procedure for the redress of any particular grievance prescribed by [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) or an Act of Parliament, that procedure should be strictly followed. These authorities remind us that there is a clear distinction between appeal and judicial review and one cannot be substituted for the other, particularly where the statute has expressly stated that one form of procedure rather than the other ought to be adopted in addressing any particular grievance. Judicial review is concerned with legality of the decision-making process, not the merits, and is only available where there is no alternative remedy. 3. It follows therefore that the impugned decision was appealable under statute, and judicial review proceedings were improperly invoked. The Applicant has not demonstrated exceptional circumstances to warrant bypassing the statutory appeal mechanism. Consequently, the application is misconceived and amounts to an abuse of the court process. 4. ***In the upshot, the application is hereby struck out with costs to the Respondent.*** **Dated, Signed and Delivered Virtually on this 28th day of May 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Odhiambo for Respondent Ms. Apat for Applicant