https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8819

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL CASE NO. E122 OF 2025** **SAMSON MUSYOKI MWANIKI...................................PLAINTIFF** **=VERSUS=** **SAFARICOM PLC.....................................................DEFENDANT** **RULING** 1. The Plaintiff filed this suit through a Plaint dated 12th May 2025. His grievance was that he developed a financial product which he named “Safaricom M-PESA VISA CARD”. 2. That he shared the same with the Defendant, and subsequently the Defendant invited him and they held meetings discussing the proposal. 3. That thereafter the Defendant went silent until later when Plaintiff learnt that the Defendant had launched the M-PESA Globalpay Virtual VISA Card. 4. Which to him is a product substantially identical to that proposed by him. That by so doing, the defendant commercial listing the Plaintiff’s concept; he had shared with it. 5. He consequently filed this suit seeking a declaration that the defendant’s said act has violated his data protection rights and privacy. He is also seeking compensation. 6. The Defendant has raised a Preliminary Objection to this suit. On the ground that the court lacks jurisdiction to entertain claims on Data Protection. As that, the Data Protection Act reserves those claims to the Office of the Commissioner of Data Protection. 7. The Preliminary Objection was canvassed by way of written submissions. Both parties filed their respective submissions. ***Analysis and Determination*** 1. I have considered the Preliminary Objection as well as the parties’ rival submissions. I have also carefully rummaged through the Plaint. There are two issues for determination on this Objection, namely*:* 2. *Whether the Objection has merit; and* 3. *What order(s) is appropriate to make.* 4. As to the Objection the first part of call and indeed the prime consideration, is whether the Objection is a proper or improper objection to be raised as a Preliminary Objection. The lead authority on Preliminary Objection is still ***Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd 1969] EA 696***, where the then court of Appeal for East Africa in restating the legal threshold of a Preliminary Objection, stated that a Preliminary Objection should be on a pure point of law. One which if successful will determine the suit *in limine*. It gave the example of an objection on jurisdiction. 5. Therefore, whether it succeeds or not, an Objection on jurisdiction, as in this case, is a proper one to be raised as a Preliminary Objection. In ***Owners of the Motor Vessel “Lilian S” v. Caltex Oil [1989] KECA 48 (KLR)***, the Court of Appeal (Nyarangi, JA) observed that jurisdiction is everything, and that without it, a court should down its tools. 6. Jurisdiction is conferred by the Constitution or a statute. The jurisdiction of the High Court of Kenya, is derived from Article 165 of the Kenya Constitution, as read with Article 162. Article 162 being on matters reserved for the Environment and Land Court, and the Employment and Labour Relations Court. 7. Article 165 gives the High Court original and unlimited jurisdiction in all civil and criminal matters. Subject only to Article 162 matters; that are reserved to the two specialized courts. 8. The Defendant’s Preliminary Objection is that this court despite being the High Court, lacks jurisdiction to entertain this suit. That the jurisdiction in Data Protection claims is reserved to the office of the Commissioner of Data Protection. That is not the position. That office was established by an Act of Parliament; and not the Constitution. I hold that the High Court has jurisdiction in data protection claims. Only that the jurisdiction is a delayed or staggered one. In that, data protection claims are first to be handled by the Commissioner, and thereafter come to the High Court either for adoption, or on Appeal. 9. The belief that tribunals and offices such as the Office of the Commissioner of Data Protection have divested the High Court of its jurisdiction, is a mistaken and misconceived one. These entities should not be allowed to usurp the jurisdiction of the High Court. This jurisdiction has only been shared, but not been taken away by such entities. To avoid the confusion steadily taking roof, I need to clarify that the High Court needs to firmly assert and protect its jurisdiction from such usurpation. 10. In the end, I hold that this Court has jurisdiction in this suit. But that the jurisdiction is a delayed or staggered one. In that data protection claims should first be lodged with the Office of the Commissioner of Data Protection, and later come to this Court for adoption or on Appeal. 11. Consequently, the Preliminary Objection is dismissed but this suit is hereby struck out. Thereby upholding the doctrine of exhaustion. There shall be no order as to the costs of this Application. **DATED and DELIVERED at NAROBI Virtually on this 16th day of June 2026.** **PROF(DR) NIXON SIFUNA** **JUDGE**