A constitutional petition can outrun the ODPC's own remedies

Facing a petition alleging covert surveillance, unauthorised access to M-Pesa and bank records, and adverse decisions taken without notice, the respondent argued the whole dispute should have gone to the ODPC first under Sections 8, 9, 56 and 57 of the Act. The Court held that whether a dispute is "purely statutory" or genuinely constitutional cannot be decided on the pleadings alone at a preliminary stage, and — critically — that the Data Commissioner simply cannot grant some of the relief being sought: the ODPC cannot interpret the Constitution, issue permanent injunctions, or award general damages for constitutional violations. Where those are the actual reliefs sought, exhaustion doesn't apply.