NAIROBI, Kenya, Feb 20 – Lawyer Danstan Omari has vowed to sue Safaricom for Sh200 million over alleged unlawful disclosure of subscriber data, following a Nairobi court ruling that acquitted university student David Mokaya after finding his electronic devices were examined without a valid court order.
Omari said he will file the constitutional petition on Monday at the High Court’s Constitutional and Human Rights Division, arguing that the telecommunications giant violated Mokaya’s fundamental rights to privacy and dignity as protected under the Constitution and the Data Protection Act.
“The David Mokaya case is a landmark decision that is going to bring sanity to the telecommunications sector,” Omari said.
In acquitting Mokaya on Thursday, Magistrate Caroline Nyaguthi ruled that prosecutors failed to prove their case.
She noted that investigators examined the accused person’s electronic gadgets without presenting valid court orders authorising the search and data extraction.
The court found the digital examination unlawful, raising serious concerns about the handling of electronic evidence and adherence to constitutional safeguards in cybercrime investigations.
Privacy violation
The prosecution had accused Mokaya of publishing false information after allegedly sharing an image of a funeral procession in reference to President William Ruto.
However, the court ruled that prosecutors failed to conclusively link him to the social media post.
While announcing his intended suit against Safaricom, Omari argued that Safaricom’s alleged disclosure of Mokaya’s location data and personal information to investigators without a court order violated Article 31 of the Constitution, which guarantees the right to privacy.
“For the police to obtain your location or personal data from Safaricom, they must first obtain a court order. Without that order, any disclosure is unconstitutional,” he said.
He also cited Article 28 of the Constitution, which protects the right to human dignity, arguing that personal data, communications, and location information fall within that protection.
“Your personal data, your messages, your contacts, and your location are part of your dignity and privacy. These rights were violated,” Omari said.
Omari said his legal team has already issued a demand letter to Safaricom seeking Sh200 million in compensation for the alleged violation of Mokaya’s constitutional rights.
“If Safaricom does not comply, we shall be before the Constitutional Court on Monday at 10 am to seek justice,” he said.
He described the case as a potentially precedent-setting legal battle that could redefine how telecommunications companies cooperate with law enforcement agencies.
The lawyer also warned that the case could have far-reaching implications for digital surveillance, particularly concerning how investigators access subscriber data, trace suspects, or seize electronic devices.
The court, in its ruling on Thursday, emphasised that cybercrime investigations must strictly comply with legal procedures, noting that digital evidence is highly sensitive and must be obtained lawfully.
