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20/03/2026

PRIVACY ALERT | COURT RULES TELCO SIM SWAP WITHOUT NOTICE IS UNCONSTITUTIONAL

The High Court has ruled that the automatic deactivation and reassignment of a registered mobile number by telecommunications companies after 90 days of inactivity without prior notice, is arbitrary and unconstitutional.

The Court found that mobile numbers are closely tied to an individual’s identity and personal data. Reassigning them without informing the original subscriber exposes sensitive information and creates real risks, including unauthorized access to accounts linked to the number.

The Court’s Finding
The practice was held to violate:
• The right to privacy
• Principles of fair administrative action
• Legitimate expectation of users to be notified before such critical actions

The Court emphasized that telcos cannot treat SIM cards as mere commodities where personal data and identity are involved.

Why This Matters
Mobile numbers today are gateways to:
• Banking and mobile money services
• Social media and email accounts
• Two-factor authentication systems

Reassignment without notice can therefore lead to serious data breaches and identity risks.

Key Takeaway
Telecommunication providers must implement clear, prior notification procedures before deactivating or reassigning SIM cards.
Where personal data is involved, convenience or internal policy cannot override constitutional rights.
This decision signals stricter judicial scrutiny over how private entities handle user data in the digital ecosystem.

19/03/2026

STATE LIABILITY SURGES | COURT AWARDS FOR ILLEGAL GOVERNMENT ACTIONS HIT RECORD KSH 66 BILLION

The cost of unlawful state action in Kenya has reached unprecedented levels, with court awards against government entities now hitting a record KSh 66 billion.

This reflects a growing trend: courts are increasingly holding the State accountable for constitutional violations, unlawful administrative actions, and rights infringements.

What’s Driving the Surge?

• Increased constitutional litigation against government agencies
• Judicial willingness to enforce accountability and award damages
• Rising number of successful claims involving rights violations.

This is not entirely new. Historical data shows that liabilities from illegal state actions have been steadily rising, placing significant pressure on public finances and exposing systemic governance gaps.

The Legal Signal

Courts are making one thing clear:

Public power must be exercised lawfully, reasonably, and procedurally fairly or it will come at a cost.

Key Takeaway

For public bodies:
• Compliance with the Constitution is not optional
• Procedural fairness must be embedded in decision-making
• Poor governance now carries direct financial consequences

For practitioners and litigants:
• Courts remain a viable avenue for enforcing rights
• Damages against the State are no longer symbolic, they are substantial

The message is unmistakable: unlawful state action is becoming one of the most expensive risks in public administration.

13/03/2026

COURT ORDERS SCHOOL TO READMIT STUDENT SUSPENDED OVER V**E ALLEGATIONS

Case: M.L.A v Moi High School Kabarak & Others

The High Court has ordered Moi High School Kabarak to unconditionally readmit a Form Four student by 5:00 p.m., after he was suspended over allegations of possessing a v**e device.

The student had been issued with a temporary suspension on 12 February 2026 pending investigations. A disciplinary hearing was later held on 24 February 2026, during which the student admitted that he had purchased the device in Nairobi.

Through his lawyer, Danstan Omari, the student moved to court arguing that his continued exclusion from school was unlawful and violated his right to education and fair administrative action.

The school responded by filing a preliminary objection, seeking to strike out the case.

Justice John Chigiti directed the applicant to file a supplementary affidavit by 12 March 2026, with the matter scheduled for mention on 18 March 2026 to confirm compliance and set a date for judgment.

Key takeaway
School disciplinary processes must still comply with constitutional standards of fair administrative action and proportionality. Even where misconduct is alleged, prolonged exclusion from school may attract judicial scrutiny.

12/03/2026

Regulatory Update | Digital Rights & Cybercrime Enforcement in Kenya

Kenya’s Court of Appeal recently delivered a significant judgment declaring several provisions of the Computer Misuse and Cybercrimes Act unconstitutional. The ruling narrows the scope of certain offences that had previously been used to regulate online speech and digital communication.

What does this mean?

The decision has important implications for businesses, media organizations, digital platforms, and individuals operating in Kenya’s digital ecosystem. Courts are signaling the need to balance cybercrime enforcement with constitutional protections such as freedom of expression and access to information.

Key implications for organizations:

• Businesses should review internal policies governing employee digital communication.
• Organizations handling online platforms must reassess compliance and content moderation strategies.
• Employers should ensure disciplinary procedures related to online conduct align with constitutional protections.

As digital communication becomes central to business operations, legal clarity around cyber regulation will continue to shape compliance obligations across sectors.

At Madowo A Advocates, we continue to monitor regulatory and judicial developments affecting businesses and institutions in Kenya’s evolving digital landscape.


07/03/2026

FREE SPEECH WIN | COURT OF APPEAL STRIKES DOWN “FALSE INFORMATION” OFFENCES IN CYBERCRIMES ACT

Case: Bloggers Association of Kenya (BAKE) & Others v Attorney General & Others (Court of Appeal, 2026)

The Court of Appeal has declared Sections 22 and 23 of the Computer Misuse and Cybercrimes Act, 2018 unconstitutional, marking a major development in Kenya’s digital rights jurisprudence.

The provisions criminalised the publication of “false, misleading or fictitious information” online and imposed penalties including fines of up to KSh 5 million and imprisonment.

Civil society groups led by the Bloggers Association of Kenya challenged the provisions, arguing that they were vague, overly broad, and capable of being used to silence journalists, bloggers, and social media users.

The Court of Appeal agreed.

A three-judge bench held that the provisions were so broad and untargeted that they could capture innocent conduct, including individuals who merely share information online without knowledge that it is false.

The judges described the sections as “unguided missiles” likely to net innocent citizens and therefore inconsistent with constitutional protections of freedom of expression and media freedom.

Importantly, the Court only struck down these two provisions and upheld the rest of the Cybercrimes Act, affirming Parliament’s authority to regulate harmful conduct in cyberspace.

Key Takeaway
Criminalising “false information” in broad terms violates constitutional guarantees of free expression. Laws regulating online speech must be precise, narrowly tailored, and clearly defined to avoid suppressing legitimate public discourse.

04/03/2026

WHATSAPP MESSAGES CAN AMOUNT TO SEXUAL HARASSMENT — COURT OF APPEAL SETS NEW WORKPLACE STANDARD

Kenya’s Court of Appeal at Mombasa has delivered a significant ruling on workplace conduct, holding that explicit WhatsApp messages sent by a colleague can constitute sexual harassment under Section 6 of the Employment Act, even in the absence of physical contact or a quid pro quo arrangement.

The Court found that persistent, unwelcome digital messages created a hostile work environment and interfered with the employee’s dignity and working conditions. Sexual harassment, the Court clarified, is not confined to physical advances. Digital communication can be just as intrusive and unlawful.

In overturning the lower court’s dismissal, the Court awarded the employee KSh 531,000 in terminal dues and KSh 1 million in general damages.

The judgment draws from the Constitution, the Employment Act, and international human rights standards, reinforcing a broader and more protective interpretation of workplace dignity.

The takeaway for employers is clear:

• Non-physical harassment through messages, emails, or social media is actionable.
• “Lack of intent” is not a shield where conduct is objectively unwelcome.
• Employers must strengthen internal policies, reporting systems, and training to address digital misconduct.

Digital trails now carry full legal weight. Workplace safety extends beyond office walls and into phones.

02/03/2026

BROKER SOLD YOUR LAND? YOU ARE STILL LIABLE — HIGH COURT SAYS YOU CAN’T DENY AGENCY AFTER TAKING THE MONEY

Case: Florence Njeri Macharia v Carolyne Wanjiku Kimundui & another [2026] eKLR
Court: High Court at Thika

The High Court has delivered a firm reminder on agency in land transactions: if you benefit from a sale, you cannot later disown the broker.

The dispute arose after a buyer paid KSh 1.3 million for parcel Kamiti/Anmer/1338 through a middlewoman, plus KSh 21,000 in “membership” fees. Months later, other individuals surfaced claiming the same land had also been sold to them. Police reports were filed. Criminal charges followed. Partial refunds were made, but the full amount was never returned.

On appeal, the seller argued that she had never authorised the broker and that the middlewoman was not her agent.

The Court was not persuaded.

Reaffirming established principles of agency law, the High Court held that agency does not require a written contract. It may be implied from conduct. Where a seller allows someone to market land on their behalf, receives proceeds from the transaction, participates in refund discussions, and makes partial repayments, the law will infer authority.

The Court found that the broker had apparent authority and that her actions bound the seller. The appeal was dismissed and the order to refund KSh 740,000 was upheld.

The takeaway: you cannot accept the benefits of a transaction and later deny the authority of the person who executed it when things go wrong.

28/02/2026

Appeals Court Upholds Sossion’s Dismissal Over Procedural Lapses

Case: Sossion v Teachers Service Commission & Another [2026]

The Court of Appeal has upheld the dismissal of a former Kenya National Union of Teachers (KNUT) official, David Sossion, from the teaching service. The court found that the termination was lawful, noting that the procedural lapses relied upon by the appellant did not render the disciplinary process unfair or unlawful in substance.

Sossion had challenged his dismissal on the basis that the disciplinary proceedings leading to his termination were procedurally flawed. However, the Court of Appeal held that while there may have been irregularities in the manner in which the proceedings were conducted, these did not rise to the level of a fundamental breach that would warrant overturning the decision. The court emphasised that procedural lapses must be so serious as to affect the fairness of the outcome before an order of reinstatement or nullification will be granted.

Key Takeaway
Not all procedural errors automatically invalidate disciplinary action. For a dismissal to be overturned on procedural grounds, the irregularities must be material and go to the heart of fairness and justice, not mere technicalities.

26/02/2026

High Court Orders HR Firm to Pay Sh262,500 for Sharing Job Seeker’s CV Without Consent

The High Court has ordered an HR recruitment firm to pay Sh262,500 after unlawfully sharing a job seeker’s curriculum vitae (CV) without her consent. The plaintiff, who had submitted her CV for a specific position, alleged that the firm distributed her personal data to third parties without authorisation and without informing her.

The court found that the sharing of her CV which contained personal information such as names, contacts, and qualifications violated her privacy rights under the Data Protection Act. The firm’s actions were held to be unfair and not justified by any lawful basis, as the job seeker had not given clear consent for disclosure beyond the original recruitment purpose.

Key Takeaway
Personal data submitted during job applications must be treated with strict confidentiality and used only for the purpose expressly authorised by the data subject. Sharing that information with other parties without consent is a breach of data protection rights and can attract financial penalties.

26/02/2026

FINTECH & DIGITAL LENDING ALERT

A significant High Court ruling in Mark Muko v Mwananchi Credit & 4 Others [2026] has reshaped the risk landscape for digital lenders in Kenya.

The Core Holding
The Court held that consumers can sue lenders directly for alleged rights violations, even where a regulator like the Central Bank of Kenya (CBK) has oversight.

Regulatory supervision does not shield a lender from constitutional or consumer protection claims.

Why This Matters

If the claim succeeds, the following lenders face serious exposure:

1️⃣ Mwananchi Credit
2️⃣ Platinum Credit
3️⃣ Izwe Loans
4️⃣ Premier Credit

Potential consequences include:
• Risk of deregistration
• Loan agreements being declared unlawful
• Interest structures being voided
• Massive restitution claims

The Legal Principle

The Court made it clear:

> Regulatory frameworks cannot override or dilute constitutional consumer protections.

In other words, compliance with CBK rules alone may not be enough if broader rights under the Constitution are implicated.

Business Implication for Digital Lenders

License status is not a technicality, it is foundational.

Fintech companies must ensure:
• Proper licensing at all times
• Transparent interest structures
• Fair debt collection practices
• Full consumer law compliance
• Alignment with constitutional standards

This decision signals a shift: regulatory compliance and constitutional compliance must move together.

For digital lenders, governance is now a survival issue, not just a compliance checkbox.

23/02/2026

EMPLOYMENT & SAFEGUARDING ALERT | WHAT CONSTITUTES “SEXUAL EXPLOITATION”?

Case: Mulavi v World Vision Kenya

The Dispute
An employee was summarily dismissed after it emerged that he had entered into a romantic and sexual relationship with an adult woman residing within the organisation’s program area.

He maintained that:
• The relationship was consensual
• Both parties were adults
• The relationship was intended to lead to marriage

The employer relied on its safeguarding policy, which prohibited sexual relationships with persons within its program area due to the risk of exploitation.

The Court’s Holding
The Court found the dismissal substantively unfair.

Key reasoning:
• A consensual romantic relationship between adults is not automatically sexual exploitation.
• There was no evidence of coercion, manipulation, abuse of power, or harm.
• No proof that the employee used his position to obtain sexual favours.

The Court underscored that safeguarding frameworks must be applied based on evidence, not assumptions.

Key Takeaway

Sexual exploitation requires more than the existence of a relationship.
There must be evidence of:
• Abuse of authority or power imbalance
• Coercion or undue influence
• Manipulation linked to position or control
• Harm or vulnerability being taken advantage of

A blanket prohibition on private relationships without proof of exploitation, is legally vulnerable.

Safeguarding is essential.
But policy enforcement must remain proportionate, reasoned, and evidence-based.

20/02/2026

LEADERSHIP & INTEGRITY ALERT | CHAPTER SIX SETS A HIGHER THRESHOLD THAN “NO CONVICTION”

Case: Wangu Kanja Foundation (K) Registered Trustees & 3 Others v Tegat Tea Factory Ltd & 14 Others (High Court, Kericho)

The High Court at Kericho has nullified the election of John Chebochok as Director of Tegat/Toror Tea Factory (Ainamoi Zone) following concerns arising from a BBC Africa Eye documentary that exposed allegations of sexual exploitation during his tenure at James Finlays.

Human rights organisations moved the Court arguing that his conduct offended:

• Article 10 – National values and principles of governance
• Article 27 – Equality and freedom from discrimination
• Article 28 – Human dignity
• Article 73 – Leadership and integrity

Notably, the Court held that absence of a criminal charge or conviction is not the benchmark under Chapter Six.

After evaluating survivor testimonies and documentary material, the Court found the evidence credible and unrebutted. It affirmed that leadership integrity under the Constitution demands more than technical compliance or procedural clearance.

Orders Issued

• Declaration that he was unfit to hold public office
• Nullification of his clearance and election
• Restraint against his swearing in

Key Takeaway

Public office is a constitutional trust.
Integrity is substantive, not symbolic.
Chapter Six imposes a moral and constitutional standard that goes beyond “not having been convicted.”

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