A Pedestrian walking past Safaricom Shop along Kenyatta Avenue in Nairobi on May 7, 2023. PHOTO | EVANS HABIL | NMG
The Court of Appeal has suspended a class action suit against Safaricom over a SIM registration last year that saw unregistered subscribers’ lines deactivated.
The appellate court put on hold the petition as Safaricom argued that it was condemned unheard after a judge allowed senior counsel Wilfred Nderitu and Charles Kanjama to proceed with the class action suit and invite aggrieved subscribers to join the case.
The two senior counsels also accused Safaricom of forcing subscribers to sign a data privacy statement, which allows the company to collect bank account details.
Read: Safaricom, CA face second class action suit over SIM listing
“Accordingly, we grant the application dated January 19, 2023, until the hearing and determination of the intended appeal,” said Justices Hannah Okwengu, Kathurima M’Inoti, and John Mativo.
High Court judge Chacha Mwita allowed the class action suit but Safaricom argued that it was made irregularly and without affording it an opportunity to be heard.
The Communications Commission of Kenya (CA) early last year directed all mobile telephone operators to ensure that they had updated the registration details of all their subscribers by April 15, 2022. The deadline was subsequently extended to October 15, 2022.
On the deadline, Safaricom suspended the services of subscribers who had not re-registered their SIM cards, among them the two advocates.
In the petition, the advocates are seeking damages of Sh12,000 per day for each of the subscribers whose line was de-activated.
The High Court had, in a ruling, directed the two senior advocates to invite subscribers whose SIM cards had been suspended to join the case as they also sought interim injunctions to stop Safaricom from effecting its data privacy statement.
Safaricom has maintained that the registration of SIM cards was within the law and sought to register new and existing subscribers, ensuring the authenticity and accuracy of the information contained in the service providers’ database.
The telco was supported by the CA, which argued that the case should have been filed before the Communications and Multimedia Appeals Tribunal.
Senior counsel John Ohaga submitted that the High Court erred by determining the application on merits without allowing Safaricom and the CA to be heard. He said had Safaricom and the industry regulator been allowed to be heard they would have demonstrated that the suit did not qualify as a class action.
As to the argument that the intended appeal risked being rendered useless, Safaricom submitted that Mr Nderitu and Mr Kanjama are seeking payment of colossal sums for each affected subscriber for the period of suspension and additional payments per day for the days the SIM cards were suspended, exposing the telco to potentially astronomical liability.
CA on its part argued that the class action suit had serious financial implications for it and that there were no prospects of recovering money paid to Safaricom subscribers.
Read: CA fights SIM Card fraud class action suit
Other than compensation, the two advocates seek the deletion of Clause 3.2.1 in the data privacy statement, which subscribers filled out as part of the re-registration process.
The clause states that the telecoms operator can “collect and store information including credit or debit card information, information on bank account numbers, Swift codes or other banking information”.
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