Harrison Kisaka Vs Faulu Microfinance Bank Limited

1. Introduction

Parties:

• Complainant: Harrison Kisaka (job applicant denied employment).
• Respondent: Faulu Microfinance Bank (accused of withholding personal data).

Core Issue: Alleged violation of the right to access personal data under Kenya’s Data Protection Act, 2019.

2. Background of the Complaint

• Kisaka applied for a job, passed interviews, and received a conditional offer subject to background checks.
• The Bank revoked the offer citing an undisclosed criminal case (Republic vs. Harrison Kisaka).
• Kisaka demanded the background report but was refused, prompting his complaint to the Office of the Data Protection Commissioner (ODPC).

3. Legal Framework

Data Protection Act, 2019:

• Section 26(b): Guarantees data subjects’ right to access their personal data.
• Section 28(2)(c): Allows indirect data collection with consent.

Data Protection Regulations, 2021:

• Regulation 9: Mandates data controllers to provide copies of processed data upon request.

4. Key Issues for Determination

1. Did the background report qualify as personal data?
   • ODPC’s View: Yes—any identifiable information (e.g., name, criminal record) is personal data.
2. Was Kisaka’s right to access violated?
   • ODPC’s View: Yes—the Bank’s refusal breached statutory and contractual obligations (consent form promised access).

5. ODPC’s Findings

• The Bank:
  • Failed to disclose the report despite explicit consent in the signed form.
  • Misinterpreted “public knowledge” as negating the right to access.
• Precedent Set: Even adverse data must be shared if it influences decisions.

6. Final Ruling & Orders

Directives:

1. Faulu Bank must release the background report to Kisaka within 7 days.
2. Failure triggers an enforcement notice.

Appeal: Parties may appeal to the High Court of Kenya.

7. Significance of the Case

• For Employers: Must transparently handle applicant data and honor access requests.
• For Data Subjects: Reinforces absolute rights under Kenya’s privacy laws.