In a ruling that lands squarely in the age of mobile money and digital accounts, the High Court sitting at Milimani in Nairobi has declared that a registered mobile telephone number qualifies as a digital identifier, one that links directly to an individual’s personal and private affairs.
Therefore, phone numbers are entitled to protection under Article 31(c) and (d) of the Constitution of Kenya, which guarantees every person’s right not to have information about their private life unnecessarily required or disclosed.
“Every person has the right to privacy, which includes the right not to have the privacy of their communications infringed,” reads Article 31(d) of the Constitution of Kenya.
The petition, filed by Erastus Ngura Odhiambo and another, challenged the common telecoms practice of taking a phone number that has gone inactive, deactivating it, and then reassigning or recycling it to a completely different customer without the original owner’s knowledge or consent.
Real-life consequences can be severe. When a new person receives a recycled number, they can potentially receive M-Pesa transfers meant for the old owner, receive one-time passwords (OTPs) for bank accounts, get added to family or work WhatsApp groups, and access verification messages for email accounts, government portals, or social media.
The petition also raised a concern that has gone largely unspoken: prisoners. When someone is incarcerated, they cannot use or top up their phone. Their line goes inactive, not by choice, but by circumstance.
That number could be taken away from them while they serve their sentence, and by the time they are released, their entire digital identity has been handed to a stranger.
Justice Mugambi ruled that automatically killing off SIM cards is arbitrary because it doesn’t leave room for the owner’s personal circumstances.
The judge emphasized that many people have valid reasons for inactivity, such as inmates, students in restrictive schools, or Kenyans living abroad in areas without roaming service.
READ: Safaricom to Hide M-PESA Numbers in SMS from March 24
In its decision, the High Court agreed with Mr. Erastus, stating that registered mobile phone numbers are digital identifiers that connect to personal information about a person’s private life.
“When mobile digital identity is lost through reallocation or recycling without interrogating the reasons behind the long period of non-use or inactivity, it creates an avenue for unauthorized disclosure of delicate information such as the person’s family or financial affairs to third parties,” the judgment states.
Justice Mugambi reminded the court that prisoners do not surrender their constitutional rights at the prison gate. Under Article 51, incarceration strips away your freedom of movement, not your right to a digital identity.
This judgement notes that a mobile number qualifies for constitutional protection, placing it in the same protective category as other private personal information under the law.
Conditions Before Phone Numbers Can Be Recycled
Justice Mugambi has further given the Office of the Attorney General six months to take all necessary measures to safeguard the digital identity associated with registered mobile numbers against arbitrary deactivation and reassignment.
| The Court’s Three Conditions for Reassigning a Phone Number | |
| 1 | Informed and verifiable consent from the previous registered owner must be obtained before any reassignment takes place. |
| 2 | Reassignment may only happen after a reasonable waiting period following a public notice, preceded by a thorough documented verification process to confirm the original owner cannot be found, or has unequivocally given up the number. |
| 3 | Technical safeguards must be implemented to prevent the new holder of the number from accessing or receiving personal data, messages, OTPs, financial alerts that belong to the previous registered owner. |
Kenya’s landmark ruling mirrors a growing regulatory wave across the continent. In Nigeria, the Nigerian Communications Commission (NCC) has proposed a mandatory 14-day warning period to ensure subscribers are notified before their inactive or postpaid lines are recycled.
NCC’s proposal is a key pillar of the Telecoms Identity Risk Management System (TIRMS) that the West African regulator is rolling out.
Safaricom, Kenya’s largest mobile network operator, which runs the country’s dominant mobile money platform, M-Pesa, deactivates lines based on inactivity.
According to its terms and conditions, a line enters “Expiry” after it has been inactive for 120 days (four months) following the end of the validity period of your last top-up.
It is worth noting that the company has Daima, a paid service to keep dormant lines from being deactivated.
The practice of reassigning inactive numbers without robust safeguards is no longer legally tenable, as the High Court has prioritized subscriber privacy over operational convenience.
