In a Landmark decision with a bearing on telephone network providers such as Safaricom and other entities including Prison Authorities, Communication Authority of Kenya, Data Protection Commissioner, data protection practitioners and millions of mobile phone consumers, the High Court at Nairobi on Thursday March 19th 2026 declared a person’s phone number to be a form of “digital identity” which just like one’s ID number, should not be deactivated or re-assigned except with the Consent of its owner.
The decision delivered by Justice Lawrence N. Mugambi arose out of a Petition filed not by high flying lawyers but by two prisoners who argued that their “digital identity” was being destroyed because the Kenya Prison Service prohibited them from using or maintaining their mobile phone numbers while incarcerated thereby making their numbers get deactivated and reassigned to third parties by mobile operators.
The Petitioners contended that this led to a massive breach of privacy, as sensitive information from banks, eCitizen, the KRA, and schools continued to be sent to their old numbers, now owned by strangers.
The court while largely ruling in favour of the Petitioner: –
- Declared that a person’s registered phone number forms part of their personal digital identity, similar to a physical National ID or Passport.
- Found that the unfettered reassignment or “recycling” of deactivated mobile numbers to be an unconstitutional violation of the right to privacy under Article 31 (c) and (d) of the Constitution.
- Asserted thatwhile the State can limit certain prisoner’s rights for security (deterrence and rehabilitation), those limitations must be reasonable and justifiable. However, the making of a prisoner “digitally dead” by forcing the loss of their digital identifier went beyond acceptable limitations.
- Found that the State has an obligation to facilitate the protection of this digital identity and in this regard:-
- Ordered the Attorney General to within 6 months take all necessary measures to safeguard digital identity against unfettered deactivation, reassignment or recycling without prior consent of previous owner, or a verifiable public notice preceded by safeguards to prevent exposure or transfer of personal data linked to previous registered owner to third Parties upon reassignment.
- On prisoners, the AG, Kenya Prisons Service, Office of the Data Protection Commissioner, Communications Authority and the relevant ministry are within 6 months to formulate and gazette a scheme to ensure the preservation of digital identity of prisoners until the lawful incarceration is served. The mechanisms are to provide a notification to the mobile network operators by Kenya Prison Service on the prisoner and the sentence so that the Prisoner may continue using the number upon completion of the sentence.
- Kenya Prison Service is to formulate regulations within six months to allow prisoners supervised access to activate or update their registered numbers.
Knowing the tendency of the State to ignore such court edicts, the Judge was clever in placing a default clause such that if the legal framework is not in place by September 19, 2026, the reassignment and recycling of deactivated mobile numbers must immediately cease. Safaricom, Airtel and Telkom should in particular take note of this default clause since they have been the culprits behind reassignment and deactivation of numbers.
The 2 Petitioners did not get all the prayers they had sought since their bid to compel the Prison authorities to allow them to use phones in prison was dismissed on the ground that the refusal to allow prisoners mobile phones during their incarceration is a justifiable and proportionate limitation on their right to privacy.
This is one of the transformative decisions of the Kenyan courts and is a welcome relief to many telephone subscribers who lose their numbers for failing to use them, when they travel abroad, when incarcerated or when they are hospitalized. This author recalls of an incident where a public officer’s phone was re-assigned to a crook and when he realized the status in society of the previous owner, begun a scheme of soliciting funds while pretending to be the previous owner.
Despite being a progressive decision, we feel that this is one of the instances where the Judge ought to have caused the addition of key stakeholders as Interested Parties to the Petition instead of condemning them unheard. We are pretty sure that Safaricom, Airtel, Communications Authority, Data Protection Commissioner, Consumer Federation of Kenya (COFEK) etc would have given materials that the judge would have used to enrich the decision reached.
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