Limited & 1 other v Athimani Party Abdalla Commissioner & 3 others

demonstrated unequivocal consent, which constituted a valid and lawful processing of personal data, under section 30 of the Data Protection Act, 2019. 3. It is averred that the interested party subsequently absconded from duty, without tendering a formal resignation or termination of employment, which left the ex parte applicant with the understanding that the employment relationship had not been formally terminated. The interested party then wrote a demand letter alleging unlawful use of his image, whereupon the ex parte applicant removed the promotional video, which it had put into circulation, from circulating. That notwithstanding, the interested party filed a complaint with the respondent, in ODPC/COMP/1791/2025, alleging unlawful publication of a promotional video on the social media platforms of the ex parte applicant. 4. The respondent invited the ex parte applicant to indicate its preferred mode of disposal of the matter, between determination on merits and alternative dispute resolution, whereupon the ex parte applicant opted for mediation. It requested for appointment of a mediator, but the respondent did not react to that request. It was surprised to be ambushed with a determination on 25th February 2026. 5. The ex parte applicant avers that that it was manifestly unreasonable and procedurally improper for the respondent to acknowledge such a request, and yet fail to initiate facilitate or communicate any mediation process. It is further averred that the assertion that the mediation had failed was baseless, and irrational and unreasonable. It is also averred that the same amounted to a blatant violation of the constitutional right of the ex parte applicant to a fair hearing and a fair administrative action, under Articles 47 and 50 of the Constitution, as well as the provisions of the Data Protection Act, 2019. 2

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6. It is asserted that the proceedings, conducted by the respondent, were irregular, unjust and procedurally unfair. It is asserted further that the ex parte applicant was not accorded an opportunity to present its case, and that there was no basis for making a finding on liability, and imposing compensation. It is submitted that the determination by the respondent is tainted with procedural impropriety, illegality and violation of constitutional safeguards. 7. Several documents have been attached in support. There is a letter from the ex parte applicant, dated 9th July 2025, addressed to the County Labour Office, reporting that the interested party had deserted duty. There is the demand letter, dated 21st October 2025, from the Advocates for the interested party, addressed to the ex parte applicant, for removal of unauthorised content, public apology and compensation. There is a response to the demand letter, dated 10th November 2025, from the Advocates for the ex parte applicant. There is a notification of a complaint, issued by the respondent, and addressed to the ex parte applicant. There is a copy of the complaint details, dated 15 th November 2025. 8. There is a letter from the ex parte applicant, addressed to the respondent, in response to the notification of complaint, and proposing negotiation/mediation. There is a bundle of 6 emails, dated 15th January 2026, 21st January 2026, 4th February 2026 and 26th February 2026, written by the Advocates for the ex parte applicant, addressed to the respondent, following up on the matter of the mediation proposed. There is a copy of the determination, by the respondent, dated 17th February 2026. The final document is an email, from the respondent, addressed to the ex parte applicant and the interested party, dated 25 th February 2026, forwarding the said determination. 3

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9. The ex parte chamber summons was placed before the Judge, on 24th March 2026, and it was directed that the same be served, for consideration inter partes, on 20th April 2026. It was further directed that, upon service, the respondent and the interested party do file and serve a response, within 10 days, and a mention was slated for 20 th April 2026, for directions on the mode of disposal. 10. Come 20th April 2026, the matter was placed before me, for my colleague Judge had by then been transferred to a different Division. The parties proposed to have the matter determined by way of written submissions. 11. Only the interested party reacted to the application, by filing grounds of opposition and an affidavit. 12. In the grounds of opposition, the interested party raises issues around the applicant complaining about the substantive correctness of the decision rather than procedural impropriety; an appeal having been lodged against the decision of the respondent; the judicial review proceedings being an effort by the ex parte applicant to avoid accountability; the ex parte applicant having been properly notified of the complaint, afforded an opportunity to respond, but chose not to engage; the ex parte applicant giving false information, on the alleged consent of the interested party to the use of his image; mediation being discretionary, and its absence not rendering the impugned decision unlawful; and grant of stay not being justified. 13. In the replying affidavit, the interested party asserts that the ex parte applicant was challenging the outcome of his complaint, and raising issues around consent, participation in filming and use of his image. He argues that those same issues are the subject of an appeal that he has filed, challenging the adequacy of the award of compensation. He complains that although he had applied 4

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for certified copies of the proceedings, none have been availed so far. He submits that the ex parte applicant had been notified of the complaint, and had been given an opportunity to reply. He argues that the ex parte applicant never filed a substantive response to the claim, and cannot now complain of being denied an opportunity to be heard. He denies giving any valid, informed and express consent for the commercial use of his image, adding that there was no contract, document or witness to support the claim that he had consented. He further argues that the filming took place within an employment setting, where he had limited bargaining power. He adds that the video was published after he left employment, and that he had objected to its use thereafter. He states that he was willing to mediate, but the timelines proposed were not convenient to him. 14. He has attached exhibits to his affidavit. These include a court receipt, dated 16th March 2026, evidencing the filing of Milimani HCCA No. E221 of 2026, against the determination in ODPC/COMP/1791/2025. There is also a copy of the memorandum of appeal, filed in Milimani HCCA No. E221 of 2026. A copy of a letter, dated 6 th March 2026, is also annexed, requesting for certified copies of the proceedings and related documents, in ODPC/COMP/1791/2025. 15. The respondent did not react to the application, despite service. 16. The ex parte applicant and the interested party have filed written submissions. 17. Those by the ex parte applicant are dated 27th April 2026. They identify 2 issues, around whether a case has been made out for grant of leave and stay. It is submitted that the ex parte applicant has a case to present against the respondent, on grounds of procedural impropriety, 5

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irrationality, breach of legitimate expectation and constitutional breaches. It is argued that the ex parte applicant had been invited to indicate whether to exercise an option, between mediation and determination on merits, and it opted for mediation, but the respondent chose to proceed to determine the matter on merits, nevertheless, without any recourse to the ex parte applicant. It is argued that there were elements of procedural impropriety or unfairness, irrationality and constitutional breaches in that, which should be available for review by the court. 18. On stay, it is argued that there is a real risk that the determination may be implemented, which would defeat the judicial review proceedings, should the leave be granted. 19. The written submissions by the interested party are dated 10th May 2026, and 3 issues are identified for determination, turning around whether any illegality, irrationality or procedural impropriety had been demonstrated, to warrant grant of leave; whether the alleged mediation process created an enforceable legitimate expectation; and whether the order of stay was merited. It is submitted that the respondent operated under strict timelines, and could not afford to wait for the ex parte applicant to engage. On mediation, it is argued that the same was not mandatory, in the context of those proceedings, hence it could not give rise to a legitimate expectation. Finally, it is submitted that the grant of stay is discretionary. 20. Firstly, the proceedings that were being conducted by the respondent make provision for a right of appeal against the determination, by any party who is aggrieved. Judicial review remedies are usually not resorted to in cases where there is a right of appeal, and tend to be entertained in cases where there is no avenue for a direct appeal to court. The ex parte applicant was better of exercising the option of appealing, instead of seeking judicial review. 6

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21. Secondly, the interested party has exercised his option to appeal, by filing Milimani HCCA No. E221 of 2026. That appeal was filed on 16th March 2026. The initial filings, to initiate these proceedings, were lodged hereon on 23 rd March 2026, 7 days after the appeal had been filed. The appeal preceded the judicial review proceedings. It would be imprudent for the High Court to entertain 2 parallel proceedings, both of which arise from and challenge the decision of a lower tribunal. Rather than insist on prosecuting these judicial review proceedings, the ex parte applicant would be better of joining the appeal in Milimani HCCA No. E221 of 2026, perhaps, by filing a cross-appeal, to raise its issues, so that all the issues arising from the determination, in ODPC/COMP/1791/2025, can be handled in the one cause. 22. Thirdly, the ex parte applicant frames its case on the basis that the dispute between it and the interested party was on employment and labour relations. It asserts justification to use the data in question, on the argument that the employment contract between it and the interested party allowed it, for it was a term or condition of that employment contract. If the foundation of the dispute is a contract of employment, and its terms were at the centre of the dispute on the use of the data, then that would operate to remove the matter from the jurisdiction of the High Court. 23. Article 162(2) of the Constitution of Kenya envisages a court with jurisdiction over employment and labour relations. That court has been established, under the Employment and Labour Relations Court Act, Cap 8E, Laws of Kenya, vested with jurisdiction to superintend over matters the subject of Article 162(2)(a) of the Constitution. Article 165(5) states that the High Court shall not have jurisdiction over the matters that fall under the jurisdiction 7

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of the courts envisaged under Article 162(2). Jurisdiction is everything. 24. Based on the above, and without going into the substance disclosed in the filings by the parties, especially the ex parte applicant, I find no basis upon which I should grant leave in this case. Grant of stay is dependent on grant of leave, and the little I say about it, the better. That then means that the ex parte chamber summons, dated 23rd March 2026, is not merited, and it is hereby dismissed. The effect of the dismissal shall be that the leave sought is hereby denied. The interested party shall have the costs. Orders accordingly. DELIVERED, VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT MILIMANI, NAIROBI, ON THIS 11TH DAY OF JUNE 2026. WM MUSYOKA JUDGE Mr. B. Rinkanya, Court Assistant. Advocates Ms. Naazi, instructed by Gikera & Vagdama, Advocates for the ex parte applicant. Mr. Guda, instructed by Martin Guda & Company, Advocates for the respondent. 8

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