https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8493

Safaricom PLC v Mureithi & another (Civil Appeal E367 of 2025) [2026] KEHC 8493 (KLR) (Civ) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8493 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E367 of 2025 AC Mrima, J May 22, 2026 Between Safaricom Plc Appellant and Catherine Kainyu Mureithi 1st Respondent Becton Dickinson & Company t/a BD East Africa 2nd Respondent Ruling Background & Introduction: 1.On 24th February 2025, the Office of the Data Protection Commissioner [hereinafter referred to as ‘the ODPC’] delivered judgment in ODPC Complaint No. 1958 of 2024. The dispute originated from a complaint filed by Dr. Catherine Kainyu Muriithi, the 1st Respondent herein, against her former employer, BD East Africa, and Safaricom PLC, the Appellant and 2nd Respondent herein respectively, on alleged unauthorized disclosure and processing of the 1st Respondent’s personal data. 2.The 1st Respondent alleged that upon her termination, BD East Africa shared her National Identity Card details with Safaricom PLC to facilitate a SIM card transfer without her informed consent. 3.Following its investigation, the Data Commissioner found both BD East Africa and Safaricom PLC liable for infringing upon the Complainant’s rights under Section 26(a) of the Data Protection Act. Consequently, the ODPC ordered each party to pay Kshs. 250,000/- in compensation. Aggrieved, the Appellant filed a Memorandum of Appeal dated March 25, 2025. 4.However, currently before this Court are two competing applications: The Appellant’s Notice of motion dated 26th March 2025 seeking to stay execution and the 1st Respondent’s Notice of Motion dated 11th April 2025, for extension of time to file a cross-appeal. 5.The applications were heard by way of written submissions thereby resulting to this ruling. Going forward, a consideration of the applications follows. The Appellant’s Notice of Motion dated 26th March 2025: 6.The following prayers were sought in the application: -i.Spent.ii.Spent.iii.That pending the hearing and determination of the appeal, this Honourable Court be pleased to order stay of execution of the Determination of the Office of the Data Protection Commissioner (ODPC) dated 24th February 2025 in ODPC Complaint No. 1958 of 2024 and all other consequential proceedings and orders.iv.That this Honourable Court be pleased to make any other orders as it deems fit in the circumstances.v.That the costs of this Application be provided for. 7.The application was supported by the affidavit of Daniel Ndaba, the Appellant’s Senior Legal Counsel. He deposed that the ODPC erred in law by adjudicating a dispute that should have been handled by the Communications and Multimedia Appeals Tribunal under the Kenya Information and Communications Act. He further contended that the Appellant did not perform a transfer of registration but merely modified billing details for a line already registered in the 1st Respondent’s name, meaning no new consent was required. 8The Appellant maintained that unless a stay is granted, the appeal would be rendered nugatory as it will be forced to pay compensation based on a decision, they argued was jurisdictionally flawed and legally unsustainable. The 1st Respondent’s Notice of Motion dated 11th April 2025: 9.Through the above application, the 1st Respondent sought the following prayers: -i.Spent.ii.Spent.iii.That this honourable court be pleased to extend time for filing the 1st Respondent’s/Applicant’s cross-appeal against part of the judgement of the Office of the Data Protection Commissioner (ODPC) dated 24th February 2025 in ODPC Complaint No. 1958 of 2024.iv.That upon granting prayers (b) and (c) above, the draft cross-appeal filed herewith be deemed as duly filed upon payment of the requisite filing fees.v.That costs of this application be in the cause. 10In the grounds and affidavit in support of the application, Dr. Catherine Muriithi claimed that the compensation award of Kshs.250,000/- was manifestly inadequate given the nature of the breach. She explained that the failure to file her cross-appeal within the statutory 30-day window was inadvertent and caused by the inaction of her former advocate. She asserted that she acted promptly upon appointing new Counsel on 8th April 2025 and that the delay, which she calculated as 15 days from the expiry of the deadline, was not inordinate. 11.In her written submissions dated 14th July 2025, the 1st Respondent submitted that there is no express procedural framework for cross-appeals under the Data Protection Act, and thus the Court should exercise its discretion to ensure substantive justice. To that end, it drew from the case of Kindest Auctioneers -vs- Orbit Chemicals Industries Limited (Miscellaneous Appeal E038 of 2023) [2023] KEELC 21782 (KLR), where the Court noted that while the rules provide for cross-appeals, they often lack specific procedural timelines. 12.The 1st Respondent further relied on the authority in Kenya Power & Lighting Co. Ltd -vs- Peter Langi Mwasi [2018] eKLR to argue that a cross-appeal should be filed within a reasonable time after service of the memorandum of appeal. She asserted that her application meets the criteria set out in the Supreme Court decision in Nicholas Kiptoo Arap Korir Salat -vs- IEBC and 7 others [2014] eKLR, which emphasizes that extension of time is an equitable remedy available to a party who explains the delay to the satisfaction of the court and shows no prejudice to the other party. 13.Finally, the 1st Respondent invoked Article 159(2)(d) of the Constitution and the precedent set in Shabbir Ali Jusab -vs- Annar Osman & another [2013] KESC 23 (KLR) to urge the Court to prioritize substantive justice over procedural technicalities. The Appellant’s Response: 14.The Appellant challenged the quest for extension of time through the Replying Affidavit of Daniel Ndaba deposed to on 10th June 2025. He deposed that the Data Protection Act does not grant the High Court the jurisdiction to extend the 30-day statutory appeal window, which he contended is mandatory. 15.He characterized the 1st Respondent’s 45-day delay as inordinate and unreasonable. He challenged the excuse of Advocate’s mistake as an afterthought, noting it was only introduced in a further affidavit after the initial application failed to provide any reason for the delay. 16.The Appellant urged its case further through written submissions dated 21st October 2025. From the outset, it drew the Court’s attention to the case of Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Ltd & 2 Others [2012] eKLR to advance the principle that a Court cannot arrogate to itself jurisdiction where none is conferred by law. It argued that the self-contained nature of the Data Protection Regulations excludes the application of the Civil Procedure Rules regarding time extensions. 17.On the merits of the delay, the Appellant cited the case of Bi-Mach Engineers Limited -vs- James Kahoro Mwangi [2011] KECA 242 (KLR), to argue that the simple task of filing a notice cannot be excused by an Advocate’s inaction. Regarding the intended cross-appeal on quantum, the Appellant called to its aid the case of Sino Hydro Corporation Limited -vs- Toloi & another [2025] KECA 1636 (KLR) and Butt -vs- Khan [1978] eKLR, asserting that an appellate Court should not interfere with a trial Court’s discretionary award of damages unless it is so inordinately low or high as to be an erroneous estimate. 18.Whereas the Appellant prayed that its Notice of Motion dated 26th March 2025 be allowed, it sought the dismissal of the 1st Respondent’s Notice of Motion dated 11th April 2025. Analysis and Determination: 19.Having carefully articulated the respective parties’ cases, the following issues arise for determination: -i.Whether the Court should grant a stay of execution of the ODPC’s determination dated 24th February 2025.ii.Whether the Court has the jurisdiction to extend time for filing a cross-appeal under the Data Protection Act and if so, whether the 1st Respondent has met the threshold for extension of time to file her cross-appeal. 20.A consideration of the issues now follows. (a) Whether the Court should grant a stay of execution of the ODPC’s determination dated 24th February 2025: 6.The power to grant stay of execution is governed by Order 42, Rule 6 of the Civil Procedure Rules which provides that an Applicant must satisfy the following conjunctive requirements for the grant of stay of execution pending appeal; that is to say: -i.The application has been made without unreasonable delay;ii.Substantial loss may result to the Applicant unless the order is made; andiii.That the Applicant is willing to furnish such security as the court order for the due performance of such decree. 21.It is not lost that the purpose of stay pending appeal as held in the case of RWW vs. EKW [2019] eKLR, is as follows: -… The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs… Indeed, to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent. 22.In Civil Application Nai 6 of 1979, Butt -vs- Rent Restriction Tribunal [1979] eKLR, the Court of Appeal crystallized the conditions for grant of stay as hereunder;a.The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.b.Secondly, the general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion.c.Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his opinion, a better remedy may become available to the applicant at the end of the proceedings.d.Finally, the Court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules, can order security upon application by either party or on its own motion. Failure to put security of costs as ordered will cause the order for stay of execution to lapse. 23.I will hence pit the circumstance of the case against the foregoing established requirements. i. Substantial loss: 23.The Appellant challenged the jurisdiction of the ODPC to hear the matter under SIM-card registration regulations. Jurisdictional contest is a weighty and arguable point of law that is deserving of an opportunity to be heard on appeal. Additionally, the Appellant argued that if stay is not granted, the 1st Respondent will commence execution and attach its critical telecommunication infrastructure which will result in substantial loss. The Appellant further asserted that it has no means to recover the decretal sum should their appeal succeed. It claimed that the 1st Respondent had no known financial means. 24.In National Industrial Credit Bank Ltd -vs- Aquinas Francis Wasike & Another [2006] eKLR the Court of Appeal held thus: -… Once an Applicant expresses a reasonable fact that a Respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the Respondent to show whatever resources he has since that is a matter which is peculiarly within his knowledge. 25.The 1st Respondent did not speak to her ability to make a refund of the decretal sum should the appeal be successful. Similarly, should execution proceed, and the Appellants infrastructure is attached, substantial loss is likely to occur. 26.In the premise, this Court is inclined to taking the position that the Applicant has satisfied this limb of the requirements. ii. Security for due performance of the decree: 27.In Gianfranco Manenthi & another -vs- Africa Merchant Assurance Company Ltd [2019] eKLR the Court observed as follows;“… the Applicant must show and meet the condition of payment of security for due performance of the decree. Under this condition a party who seeks the right of appeal from money decree of the lower court for an order of stay must satisfy this condition on security. In this regard, the security for due performance of the decree under order 42 rule 6(1) of the Civil Procedure Rules, it is trite that the winner of litigation should not be denied the opportunity to execute the degree in order to enjoy the fruits of his judgment in case the appeal fails." 28.The Appellant indicated willingness to deposit the entire decretal sum by way of bank guarantee or such other mode as this Court may direct. iii. Delay: 29.The ODPC’s judgment was rendered on 24th February 2025. The Applicant lodged its application on 26th March 2025. It represents a period which is not inordinate delay for all intents and purposes. 30.Taking the circumstances cumulatively, this Court is inclined to staying execution in order to preserve the status quo. (b) Whether this Court has the jurisdiction to extend time for filing a cross-appeal under the Data Protection Act, and if so, whether the 1st Respondent has met the threshold for extension of time to file her cross-appeal: 31.The Appellant’s primary objection on jurisdiction is a call for an interrogation of the appellate procedure of the decision of the ODPC. Section 64 of the Data Protection Act provides as follows;64.Right of appealA person against whom any administrative action is taken by the Data Commissioner, including in enforcement and penalty notices, may appeal to the High Court. 32.As it is apparent that an appeal from the ODPC lies to the High Court, and since the Data Protection Act together with the Regulations therein are silent on the timelines [save Regulation 19 of The Data Protection (Complaints Handling Procedure and Enforcement] Regulations which provides for appeals against enforcement notices], then the operative law guiding appeals generally from the ODPC to the High Court is the Civil Procedure Act and the Rules thereunder. 33.Whereas the Civil Procedure Act and the Rules provide for the timelines in filing appeals, they are, however, silent on the timelines on filing cross-appeals. As such, this Court takes a liberal position to the effect that a party is at liberty to file a cross-appeal without the leave of Court before directions are taken in the appeal. It, therefore means, that a party wishing to file a cross-appeal after directions are given in the appeal will have to seek and obtain the leave of the Court to do so. It is, hence, this Court position that since directions on the hearing of the main appeal are yet to issue in this matter, the 1st Respondent is at liberty to lodge a cross-appeal without the leave of Court. Needless to say, there is need for the Rules Committee to look into the aspect of the timelines on cross-appeals. 34.Having dealt with the two issues, the discussion now rests. Disposition: 35.As I come to the end of this ruling, I wish to apologize to the parties for the late delivery of this decision was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 36.In the end, the totality of the circumstances favour allowing both applications. Consequently, the following final orders hereby issue: -(a)There shall be a stay of execution of the determination by the ODPC on condition that the Appellant deposits the sum of Kshs. 250,000/- [Two Hundred and Fifty Thousand Only] in Court within 30 days of this Order, failing which the stay order shall stand vacated and the 1st Respondent be at liberty to levy execution.(b)The 1st Respondent shall file and serve a Cross-Appeal within 10 days of this Order.(c)Parties shall bear their respective costs of both applications.(d)The ODPC trial file and determination be availed for further directions.(e)This matter shall be fixed for directions on a date to issue.Orders Accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Miss Shamalla, Learned Counsel for the 1st Respondent.No appearance for the other parties.Michael/Amina – Court Assistants.