Win for customers as High Court upholds ban on Safaricom’s Bonga Points expiry rule

Telecommunication giant, Safaricom, has suffered a legal setback after the high court declined to lift an order barring it from expiring Bonga points.

The court declined to lift an order issued by Justice Chacha Mwita in November last year, which stated that the expiry rule for Bonga points, even temporarily, would be against public interest and consumer rights.

The telecoms giant had asked the court to freeze the ruling delivered in November 2024 pending its appeal after Justice Mwita quashed Safaricom’s notice to phase out Bonga Points older than three years, citing constitutional violations.

The dispute stems from the October 28, 2022, public notice by Safaricom, which indicated that Bonga Points redeemed by its customers will have expiry dates.

However, in November last year, Justice Mwita declared Safaricom’s public notice illegal, unconstitutional, null, and void.

Justice Mwita quashed the notice and prohibited them from effecting the notice.

The judge held that Bonga points once earned by customers become customers’ property; thus, Safaricom ceases to have control over them.

“In the circumstances, it would be inappropriate and possibly contrary to article 2(4) of the Constitution for this court, as the trial court, to grant a stay of its decision declaring the 1st respondent’s (Safaricom) notice constitutionally infirm,” Mwita ruled.

In the petition filed by Nakuru doctor, Magare Gikenyi, he asked the court to stop Safaricom from taking away the Bonga points and the non-merchandise Bonga redemption.

Gikenyi sued Safaricom, the Communications of Kenya (CAK), and the Attorney General (AG) and cited the Consumers Federation of Kenya (COFEK) and the Law Society of Kenya (LSK) as interested parties.

In April this year, Safaricom had asked the court to set aside the order by Mwita pending an appeal.

Safaricom had told the court that its customers would utilize and deplete Bonga points older than three years, and should the appeal succeed, the decree would be incapable of enforcement, and the effect would be irreversible.

In their affidavit filed by Cerere Kihoro, Safaricom said that it has an arguable appeal, and unless a stay of execution is granted, the impugned notice will remain ineffective to its detriment since the Bonga points held by subscribers would have been expended, and it would be impossible to recover them.

Kihoro said that its customers would easily get their Bonga points back in case the appeal did not succeed.

She said that the court failed to appreciate that it did not have jurisdiction to determine the petition owing to the doctrine of exhaustion.

Cerere said the application was brought under rules 30 and 32 (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules).

The giant mobile network said that it had delayed filing its application for staying Justice Mwita’s ruling because it had instructed new lawyers to represent them and also applied for typed copies of proceedings early December last year.