Katiba Institute censures Safaricom for appeal order by Ombudsman to release details on data shared with police

A public interest litigation has criticised a move by Safaricom to appeal a Commission on Administrative Justice verdict ordering Safaricom to turn over information regarding personal data or communication details of individuals under investigation it had surrendered to the police between June 2024 and 31st October 2024.

The information had been sought by Robert Wanjala Kituyi, a Kenyan investigative journalist, following reports that the giant telco was routinely helping the police track down persons under investigation.

It followed a period when there was a rise in cases of abductions and enforced disappearances in the country. It was alleged that Safaricom shared the personal data of individuals with police officers who were accused of conducting the abductions. Safaricom refused to respond to him.

Kituyi had in a letter, on 6 November 2024, sought information on the data privacy measures of customers put in place by Safaricom in compliance with these orders, and steps taken by the company in case of ambiguous or overreaching orders.

Kituyi had also asked Safaricom if they have ever denied giving information because of the ambiguity or overreaching nature of such court orders and how many denials (if any).

After Safaricom failed to avail the information, which was sought under the Access to Information Act, the journalist turned to the intervention of the Ombudsman, which is the the oversight and enforcement agency.

Katiba Institure says the CAJ invited Safaricom Limited to respond to the request for information. Again, Safaricom Limited declined to answer.

On February 5, the CAJ determined that Safaricom Limited breached the right to access information and ordered it to share the information sought with Kituyi on November 6 with a follow up on November 27.

It directed the Chief Executive Officer of Safaricom to facilitate access to information and records relating to Kituyi’s request in compliance with the law within 21 days.

It, however, noted that the information may be subject to limitations under Section 6 (1) of the Access to Information Act 2016.

However, instead of complying with the order, Safaricom moved to the High Court at Milimani to contest the order, Civil Appeal No. HCCA E207 Of 2025.

The significant grounds of appeal by Safaricom include that the telco cannot be forced to give such information as it is a private entity, and the law on disclosure of information by public entities does not apply to it.

Through its lawyers, Isime, Kamau and Maema Advocates, also held that the information sought is limited for several reasons, including that it will undermine its commercial interests and that public interest favours non-disclosure of such information.

Katiba Institute said it is concerned that though Kituyi sought to enforce a fundamental right enshrined in the Constitution, he now faces the risk of being ordered to pay heavy costs that follow the Strategic Litigation Against Public Participation (SLAPP) suit filed by Safaricom Limited.

“This suit comes in the wake of reports that Safaricom has engaged in actions that have been alleged to limit
press freedom and derail transparency and corporate accountability,” it said in a statement.