BY SAM ALFAN.
A lobby group has moved to court seeking to block mobile service providers from unauthorised deductions, without consent from consumers.
Youth Advocacy Africa wants Safaricom PLC, Airtel Kenya and Telecom Kenya restrained from effecting or continuing to effect any deductions, charges or enrollments into any subscription-based or premium service, without the consumer’s prior, express, and informed consent.
The lobby through student leader Anthony Manyara and John Mwangi have also sought court orders compelling Communication Authority to file in Court a detailed report on all consumer complaints relating to three telcos.
The report according to the petitioners should state the complaints received against the telcos between January 2023 and the date.
They said the report should show unauthorized deductions, forced or non-consensual subscriptions, discriminatory access to services in rural areas and measures taken or enforcement actions pursued.
In the court documents , the duo want the court to issue an interim order compelling Safaricom , Airtel and Telcom Kenya to publish and implement verifiable opt-in and opt-out mechanisms for all subscription services.
The telcos should also refrain from auto-renewing or auto-enrolling consumers without explicit consent, pending hearing and determination of the case.
“Unless this Court urgently issues conservatory and interlocutory reliefs to stop unauthorized deductions and ensure equitable service delivery, the Petitioners and the broader public will continue to suffer irreparable harm, financial loss, and frustration of their constitutional entitlements,” the petitioners pleaded.
The lobby argued that unauthorized deductions, imposing undisclosed charges, and enrolling consumers into subscription-based services without prior and informed consent was a violation to the rights of consumers under Article 46(1)(a), (b), and (c) of the Constitution of Kenya 2010.
“A declaration be and is hereby issued that the failure by the Communication Authority to take appropriate regulatory and enforcement action against Safaricom, Airtel and Telcom Kenya constitutes a dereliction of its statutory and constitutional duties, and violates Articles 10, 46, and 47 of the Constitution of Kenya 2010,” seeks petitioners.
The two and the lobby group have further urged the court to make declaration that the provision of poor-quality telecommunications services in rural and underserved areas, while charging the same tariffs as in urban areas, amounts to indirect discrimination and a breach of Articles 27, 43(1)(b), and 46(1)(a) of the Constitution of Kenya 2010.
The petitioners also want the telcos compelled to refund to consumers who have suffered unauthorized deductions, charges, or subscriptions in the past three years, subject to verification by an independent audit overseen by the Communication Authority.
“An order of Mandamus be and is hereby issued compelling Safaricom, Airtel and Telcom Kenya to establish and publicize clear, accessible, and toll-free opt-in and opt-out mechanisms, and to ensure transparency in all pricing, terms, and conditions for services offered,” seeks petitioners.
Manyara, Wangai and Youth Advocacy Africa submitted that the three service providers have systematically delivered inferior services particularly in rural and marginalized areas, characterized by poor network coverage, low data speeds, and frequent interruptions.
“The losses incurred by the consumers as a result of the Safaricom , Airtel and Telcom Kenya deeds and misdeeds are significant for low-income users who rely on mobile services for financial transactions, access to digital markets, communication, and essential public services,” they argued.
They argue that despite being fully aware of the above patterns of abuse, the industry regulator has failed in its statutory and constitutional duty to take enforcement action.
Notably, they said, CA’s Consumer Complaints Reports for Quarter I and Quarter 2 of FY 2024/2025 indicate persistent complaints relating to unauthorized deductions, forced subscriptions, and billing irregularities.
“The actions of Safaricom, Airtel and Telcom further violate Article 47 of the Constitution, which guarantees the right to fair administrative action, and Section 25 of the Data Protection Act, 2019, which mandates that no person shall process personal data including for the purposes of service delivery without express and informed consent,” says petitioners’.
It was their argument that the matter raises substantial constitutional questions concerning systemic consumer exploitation, regulatory inaction, corporate impunity, and digital inequality.
“It affects a large section of the public and is therefore a matter of public interest under Articles 22, 23, and 258 of the Constitution,” Manyara said.
