BY SAM ALFAN.
Communication Authority of Kenya wants case by a businessman accusing Safaricom of negligence over SIM-Swap that saw him lose about half-a million to fraudsters, dismissed arguing that the matter has been filed in the wrong forum.
According to CA, the issues raised by Abdi Zeila fall within the mandate of communications and Multimedia Appeals Tribunal, which was established under the Kenya Information and Communications Act (KICA) and whose jurisdiction relevant to the case.
The regulator further says the jurisdiction of the civil division has been wrongly and prematurely invoked in relation to issues for which specific and exclusive procedure have been prescribed.
The CA says Abdi has not followed the procedure set out under KICA (Consumer protection) Regulations, 2010 and the KICA (Dispute Resolution) Regulation, 2010.
“The plaintiff’s (Abdi Zeila) suits offends the doctrine of exhaustion of remedies to the extent that it invites the court to interfere with the mandates of legally recognized Tribunals,” says CA.
CA adds that Abdi’s suit does not disclose a reasonable cause of action against the regulator and the entire suit is a manifest abuse of the court process.
The Regulator further adds that Abdi’s case has not set out with specifity the purported acts which constitutes the course of action especially on the alleged failure to perform or breach of statutory obligations.
Abdi filed the class action suit last year accusing Safaricom of failing to provide secure services to him and by its negligent or failure to discharge its duties diligently, he lost the money while on holiday in a neighbouring country.
The businessman wants the court to compel Safaricom and the regulator to be jointly held liable for the loss of Sh495,651.
He says he has been a customer for Safaricom for the past 20 years and wants the court to declare that Safaricom failed to securely process and control his personal data, exposing him to financial losses.
Abdi has also accused the CA saying it has failed to exercise its regulatory mandate in a diligent manner by failing to hold Safaricom to account.
“The Plaintiff avers that as result of the Defendants’ pleaded failures, breaches, negligence, and violations, he incurred injury and losses and holds the Defendants jointly and severally liable,” he says in the petition.
As a result of the unauthorized sim-swap, Sh373,000 was withdrawn from his NCBA account, a Mobile bank loan of Sh66,640 drawn on his NCBA bank account, Sh24,000 M-Shwari loan, Sh20,000 drawn from his KCB Mobile loan and Sh12,000 overdrawn from Fuliza.
He reveals that on March 28 this year, a sim-swap was done on his Safaricom number without his authorization. At the time of the sim-card, he was on a roaming network outside Kenya and it was therefore not possible for him to avail himself and apply for a new sim or replacement sim-card.
He adds that having been on roaming network at the time, the Safaricom system was able to geo-locate him and confirm that the sim-swap request was not coming from him.
“I know this is possible because Safaricom has introduced geolocation facility to detect fraud in its system, for instance in M-pesa transactions where it is not possible to deposit money into an M-Pesa account that is not within the vicinity of the transaction M-pesa agent,” he says.
Abdi adds that after when he crossed into Kenya through Namanga border just after midday, he discovered that his Safaricom network was not functional and he immediately messaged Safaricom via direct message on its official Twitter handle.
Safaricom allegedly advised him to switch off his phone and remove the sim-card and re-insert and despite doing that network was not restored.
