The Supreme Court of Kenya has dismissed a petition filed by the Law Society of Kenya challenging the Court of Appeal’s judgment that allowed the Communication Authority of Kenya (CA) to continue developing a Device Management System (DMS).
CA is banking on the system it intends to install on mobile phone networks to weed out counterfeit phones from the local market.
In a ruling delivered by a five-judge bench on Friday, April 21, the court dismissed LSK's appeal on grounds that the society did not participate in the matter before the High Court or the Court of Appeal, hence a stranger in the case.
"After hearing the submissions by the parties on whether this Court has jurisdiction to hear and
determine this appeal, and whether the party adjudicating this matter is properly before the Court, and
upon considering the relevant laws; the Court found that the definition of ‘a person seeking to file an
appeal’ provided for in Article 163 (3)(a) and (b) of the Constitution only extends to a party who is
aggrieved by a decision issued against them by the Court of Appeal and who then, prefers an appeal
before the Supreme Court.
"This definition does not open the door to approach this Court, for any passerby who is disgruntled with a decision delivered by the appellate court. Furthermore, there is difficulty in granting relief at this stage to a party who did not litigate the issues in the appeal before the Superior Courts. This principle also extends to matters relating to public interest, " the ruling reads in part.
The ruling followed a preliminary objection lodged by CA, indicating that the society lacked the capacity to file the appeal before the Apex court.
The bench comprising Deputy Chief Justice Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung'u and Isaac Lenaola also dismissed a cross-appeal filed by activist Okiya Omtatah on similar grounds.
"This Court further determined that the cross-appeal filed by the 3rd respondent suffered similar fate and must be dismissed, as a cross-appeal can only be filed upon the filing of an appeal by a party who is properly before this Court," the judges ruled.
"The Appeal is hereby dismissed for want of locus of the Appellant. The cross-appeal is also hereby dismissed; the Appellant shall bear the costs of this appeal."
The Court of Appeal had given a green light to CA to continue developing the anti-fraud system on condition that the guidelines or regulations on its installation be subjected to public participation.
LSK, however, contested the installation of the system in devices including the intent, utility, procurement and usage of the system which it argued would affect millions of mobile phone subscribers.
On his part, Omtatah challenged the Court of Appeal’s decision on the grounds that DMS could access information on the IMEI, IMSI, MSISDN and CDRs of subscribers, constituting a threat to the right to privacy.
He argued that the system would allow the government to eavesdrop on its citizens' private conversations, spy on calls and texts and examine all mobile money transactions.
Omtatah, now Senator for Busia, also told the court that CA had failed to engage the public on the system.
Notably, the High Court had blocked the development of the DSM device after Safaricom raised concerns that the monitoring devices would give the regulator access to other customer data held by the telecom operators.
However, CA told the Court of Appeal that the regulator had no intention of snooping on customers’ information and that the DSM devices would be used to crack down on illegal mobile devices operating in the market without infringing on consumers’ privacy.
“In the foregoing regard, it is not our submission that the DMS device does not and is not intended to infringe the right to privacy of subscribers, nor are there any proven less restrictive means of combating illegal devices,” Wambua Kilonzo, the lawyer for the regulator, told the court.