ANN NDUNG’U vs. ZAMARADI CAPITAL & CREDIT GROUP LTD T/A HAKI MONEY
1. Introduction
The case is in respect to the complainant, Ann Ndung’u against Zamaradi Capital & Credit Group Ltd t/a Haki Money, on the repeated contact made to her to repay a loan taken by a third party despite her not being a guarantor. This action is against the Data Protection Act, 2019 provisions.
Table of Contents
2. Nature of Complaint
The complainant was listed as a guarantor without her consent. The complainant alleged that the respondent repeatedly contacted her to repay a loan taken by a third party, referred to her as a “guarantor” in messages, and threatened to affect her credit score if the borrower did not pay.
3. Analysis of Evidence
Complainant’s Position
- Provided screenshots and printouts of messages she received from the Respondent and/or its agents
- The message stated: “DEAR GUARANTOR inform Walter XXXX of 0722XXXXX8 to clear his loan Kshs 28XXX (HAKI MONEY). The said person has become extremely non-cooperative. This might affect your credit score incase if they don’t pay, kindly tell your friend to be a responsible borrower.”
- Confirmed she was not a guarantor to the loan
Respondent’s Defense
- Stated that after receiving the notification of the complaint, they reached out to the Complainant via email on 5th February 2024 to resolve the matter amicably
- Averred that the Complainant responded that she needed a written apology as proof that her information was not in their system, which the Respondent honoured
- Adduced email threads, a written statement from its operations manager, Terms and Conditions, CBK correspondence, and a contractual agreement with an outsourcing agency
4. Issues for Determination
- Whether the Respondent has violated the Data Protection Act
- Whether there are remedies available against the Respondent
5. Final Determination
The Data Commissioner found:
- The Respondent was processing the Complainant’s personal data unlawfully.
- The Respondent did not cooperate fully during the site visit.
- The Respondent resolved the complaint with the Complainant in line with Regulation 11(1)(b) of the Enforcement Regulations.
- No prosecution was recommended since the complaint was resolved amicably.
Orders:
- No compensation awarded as the complaint was resolved to the Complainant’s satisfaction.
- Right of appeal to the High Court within 30 days.
6. Significance and Impact
Digital Lender Accountability and System Functionality
- Establishes that digital lenders must ensure their systems are functional and compliant with the Act
- Inconsistent Terms and Conditions and non-functional mechanisms constitute non-compliance
Cooperation with ODPC Investigations
- Reinforces the obligation of data controllers to fully cooperate with ODPC site visits and investigations
- Failure to avail required personnel constitutes obstruction under Section 61
Broader Impact: This determination highlights the systemic failures in Kenya’s digital lending sector, where lenders rely on unverified emergency contacts for debt recovery and operate non-compliant systems. It underscores the importance of ODPC site visits as a critical regulatory tool and the consequences of obstructing investigations.