BY SAM ALFAN.
The High Court has dismissed a case filed by three Safaricom customers who sued the telco over alleged breaches.
Justice Nixon Sifuna dismissed the case by the three MPesa account holders over failure to comply with court directions.
Gichuki Waigwa, Lucy Nzola and Godfrey Okutoyi filed the case last year accusing Safaricom of various bearches including carting away billions of profits.
Justice Sifuna, however, dismissed the case after the three failed to comply with directions on the hearing of the case.
“Despite being required to comply within 21 days, it is now over a month thereafter, and the said directions piously remain uncompiled with. Without any hesitation, I hold that by their own indolence and consistently continuing non-compliance with the said directions, the Plaintiffs and their Advocate have themselves dismissed their own suit,” ruled Judge Sifuna.
He added that those directions are crafted by the court, were intended to itself keep reminding the Plaintiffs and their Advocate of the consequences of not complying with it- an automatic and self-executing self-dismissal of the suit.
The judge said the directions were fashioned to operate like and with the precision of a self-guided missile.
He further added that the court gave them teeth to bite upon the expiration o that ordained proverbial grace period of 21 days (just like the number of Defendants in this suit), without any prompting at all.
The judge added that there being no application by them for revival or reinstatement of suit, it should be left to continue resting in peace.
However, the court gave greenlight to the three to file a fresh suit if they wish.
“If still interested in pursuing the declared public spirit and public interest, the plaintiffs are at liberty to file a fresh suit if they wish. It is to be hoped through, that they will next time proceed with utmost diligence and energy, in line with the old adage- “once bitten, twice shy”. Judge Sifuna advised the three.
Judge Sifuna had added that should the three continue having difficulties in effecting service on any of the Defendants, they shall be at liberty to within these 21days file an Application for substituted service as the) stated that this in public Interest litigation.
But by the 8th of November 2023, more than a month since 4th October 2023, they had not bothered to comply with those directions.
“They are unperturbed and Senior Counsel Mr Wilfred Nderitu the IT Advocate, has in his attractive humorous oral submissions informed thi Court that he needs two more weeks to comply. Interestingly, he hasn’t neither prayed for a review of those orders nor a reinstatement of the suit,” said the judge.
He added that he has instead shrugged off any suggestion that the suit stands dismissed and humorously maintains that the suit is very much alive and kicking
Attorney General had opposed the case and asked the court to refer the suit to arbitration.
In over 700 pages petition, the three had accused the company of among others, transfer pricing by unlawfully removing money belonging to M-Pesa account holders from Kenya and shifting it to low tax jurisdictions.
The three claim that Vodafone Group and the related companies have made money in Kenya and should, therefore, not be allowed to ‘cart away’ the money out of country but plough it back into the local economy.
They argued that the carting away of billions has reduced the Tax-to-GDP ratio and long-term prospects for the Kenyan economy.
They also claimed that the move has increased Kenya’s public debt, thereby unnecessarily leading to higher taxes being imposed on taxpayers.
Through Senior counsel Nderitu, the three wanted the court to compel the company to refund M-Pesa account holders more than Sh305 billion, which they said the company admitted from March 2019 and March 31, 2020.
The subscribers further accused the Central Bank further of failing to notify other regulatory agencies that the consistently high profits that Safaricom reported were largely being derived from M-Pesa Account holders’ funds through theft of interest and investment income generated using their monies.
“The Central Bank was at all times well aware that these illegal and unlawful circumstances would ultimately lead to erosion of the shareholder value of Safaricom’s shareholders,” the petition reads.
It is their argument that the transfer pricing between Safaricom Plc on the one hand and the Vodafone Group Plc and its subsidiaries on the other hand was fraudulent, contrary to the relevant OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations.
