Recently, there was a thread on the case against Safaricom by it's users on the privacy concerns in light of it's terms and conditions. I remember an argument as to which institution is specialised to handle such complaints - the Constitutional Court or the ODPC. I argued for the latter, here is an interesting case to support that.

In Mwangi & another v Naivasha County Hotel t/a Sawela Lodges (Petition E003 of 2021) [2022] KEHC 10975 (KLR) (19 July 2022) (Ruling)

The Petitioners alleged that the Respondent took photographs of them during a team building activity at the Respondent’s premises and proceeded to make posts on various social media platforms using the said pictures with the intention of marketing the Respondent’s products. The Petitioners averred that the actions of the Respondent violated their right to privacy as they did not consent to having their photos taken and the used

The Court held that the matters raised by the Petitioners fall under the jurisdiction of the Data Protection Commissioner established under the Data Protection Act, 2019 and the Honourable Court acted to discourage invocation of the constitutional process where there exists a parallel or alternative statutory remedy.

Will the class action against Safaricom suffer the same fate?

And why the difference in jurisprudence emanating from the High Court? Why did they admit the Njeri Wanjiru V Machakos University case and throw this one out?

What can be done to ensure the Courts develop consistent and synchronous decisions in this area?

Kind regards

Meshack K Masibo.