[2022] KEHC 9789 (KLR)

Wanga v Safaricom Limited (Petition E008 of 2020) [2022] KEHC 9789 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9789 (KLR)

Republic of Kenya

In the High Court at Kisumu

Petition E008 of 2020

FA Ochieng, J

July 14, 2022

Between

Bob Nicholas Wanga

Petitioner

and

Safaricom Limited

Respondent

Ruling

1. By an application dated July 22, 2021, the Safaricom PLC sought orders to vary or discharge the orders made on July 7, 2021.

2. On July 7, 2021 the court directed Safaricom PLC to supply Data Interface Logs for the mobile phone number 0723xxxxx, within 10 days.

3. It made it clear that it was ready and willing to comply with the order in question. However, there were, apparently, some limitations regarding the manner of compliance.

4. By his replying affidavit, the Petitioner expressed the view that it was unfortunate that the application was lodged before the Applicant had engaged him.

5. He told the court that whilst the Applicant was talking about limitations, their understanding was misplaced. That view is based upon the fact that whilst the Applicant made reference to Call Data Logs; Mpesa Transactions; and Mobile Data Usage, what the Petitioner needed was the Data Interface Log.

6. Clearly, the parties are talking at cross-purposes.

7. On his part, the Petitioner filed the application dated November 29, 2021, urging the court to declare illegal, the deactivation of his cell phone number 0723xxxxxx. Interestingly, the Petitioner also sought an order to stay the orders which required the Safaricom PLC to give the Data Interface Log.

8. The Petitioner drew the court’s attention to the fact that the Safaricom PLC came to the court seeking the review of the initial orders after the lapse of the period when they should have complied.

9. It is well settled that when a party chooses to disregard an order of the court, which was directed at him, the party is deemed to be in contempt of court.

10. Ordinarily, the party in whose favour the order had been made would move the court, asking that the party who disregarded the order, be cited for contempt of court.

11. The Applicant (Safaricom) has introduced, albeit covertly, the issue of jurisdiction.

12. In principle, I do appreciate the contention that issues such as the registration, activation, suspension and de-activation of sim cards are administrative issues, which ought not to be canvassed as constitutional issues.

13. Indeed, Section 102 of the Kenya Information and Communication Act establishes the Communications and Multimedia Appeals Tribunal. The said tribunal has jurisdiction to handle matters relating to, inter alia, the regulation of sim-cards.

14. The issue which the Petitioner has raised in the application dated November 29, 2021 appears to fall squarely within the jurisdiction of the Tribunal.

15. Accordingly, I find that it was inappropriate for the Petitioner to lodge his complaint concerning the de-activation of his mobile phone, at the High Court. He ought to have moved the Tribunal, and to have exhausted the processes laid out for resolving such disputes before contemplating whether or not to, thereafter, move to the High Court.

16. But then again, the Petitioner submitted that before he could lodge a complaint at the Tribunal, he would require documentation. It was the said documentation which he was demanding from the Applicant.

17. I appreciate the difficult situation portrayed by the Petitioner. If he requires the “Data Interface Logs” in order to lodge a complaint before the Tribunal, he cannot utilize the specified medium for resolving that kind of dispute, before getting the data.

18. However, this case demonstrates very starkly why there are disputes which are better handled by specialized Tribunals. I say so because the court is not well-versed in technicalities attendant to telecommunication. Even the parties are clearly unable to agree on what constitutes “Data Interface Logs.”

19. The Applicant has conceded that it failed to provide clarification to the court when the petition was first canvassed. However, the apology does not do much in the circumstances, because it comes after the court had rendered itself.

20. The Applicant must take responsibility for its failure to: -(a)Raise the issue of jurisdiction at the earliest opportunity; and(b)State its understanding of what “Data Interface Logs” means.

21. You cannot wait until after you have been told to provide the said logs to say that you are unable to do so, because you do not keep records for the duration beyond three months.

22. On the other hand, it would be an act of futility to insist that the Applicant must comply with the order to provide something which they might genuinely be unable to do.

23. On July 7, 2021 I delivered a ruling on an interlocutory application. The petition is still pending.

24. In these circumstances, am persuaded that the Applicant has made out a case to warrant a review of the orders made earlier. I say so because there is need to have clarity as what constitutes “Data Interface Logs.”

25. There will be further need to have a fuller appreciation of whether or not service providers have an obligation to keep the Data Interface Logs for periods long enough to be able to meet the demand made by the Petitioner.

26. In the event that the court was to ultimately determine that the service provider has a legal obligation to keep the requisite records long enough to be compellable to provide the data, the court would then be able to determine whether or not there had been contempt of court.

27. It is only at that stage that the question of the most appropriate form of punishment, if any, would be determined.

28. As regards the question about whether or not there was alleged deactivation of the Petitioner’s phone-line, that would be determined at the time when the substantive petition is determined.

29. In effect, the Petitioner’s application is rejected.

30. However, although the Applicant’s application for review was successful, I order that each party will meet his own costs. I so hold because, as I have already stated, the Applicant is to blame for failing to raise issues early enough. It is for that reason that I decline to award costs to the Applicant.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF JULY, 2022. FRED A. OCHIENGJUDGEI certify that this is a true Certified Copy of the Original.........................................DEPUTY REGISTRARKISUMU HIGH COURT