BY SAM ALFAN .
The country’s largest mobile operator Safaricom cannot escape liability for money withdrawn from a client’s Mshwari account.
In a precedent-setting decision, High Court judge Asenath Ongeri agreed with small claims court that Safaricom is responsible for the loss of money, after the owner Ronald Kafwa notified the telco about his lost phone and requested the company to block his account.
“On the issue as to whether the appellant (Safaricom) was responsible for the loss incurred by the respondent, I find that the answer is in the affirmative,” ruled the court.
The judge said in the ruling that Safaricom owed Ronald Kafwa a fiduciary duty of care to act with diligence after he reported the loss of his mobile phone and took all the necessary steps to have all the transactions blocked.
The judge went ahead and ordered the company to refund Kwafwa Sh452,868, which was withdrawn from his mobile account, after he asked the company to block his sim card.
“On the issue as to whether the respondent (Ronald Kafwa) was responsible for his own loss, I find that the trial court was right in holding that the respondent (Kafwa) was responsible only for the loss incurred before he reported to the Safaricom,” said the judge in his decision.
Kafwa sued Safaricom seeking a refund of Sh.751,680 which was withdrawn from his MPesa account after he lost his mobile phone. He reported the matter to Safaricom and asked for the blocking of Sim card.
The court further found that it was the duty of the Safaricom to ensure that the sim card was blocked after Kafwa reported the matter.
But before he reported the loss, Sh292,812 had been withdrawn from the mobile. The court ruled that Kafwa was responsible for this loss but subsequent withdrawals fall squarely on Safaricom.
The court dismissed claims by Safaricom that Kafwa might have disclosed his pin to third parties, leading to the loss of money.
Kafwa won the case before the Small Claims Court, which ruled that Safaricom was responsible for the loss of Sh.452,868.
He told the court that Safaricom was bound to honour his instructions and keep his line blocked until such a time that he would ask for the line to be unblocked.
Safaricom appealed against the decision saying it does not jointly or otherwise operate the MShwari product or its security protocols, and consequently, it bore no responsibility for third-party products that are linked to its M-pesa service as indicated in its terms and conditions.
According to telco, Kafwa was responsible for keeping his Pin confidential to ensure that only he could initiate transactions.
The company added that Kafwa’s disclosure of his pin established as a factual finding by the trial court should have absolved by Safaricom from liability but court dismissed the claim since Safaricom had no evidence to prove allegations.
