Safaricom Plc v Sayi & another (Civil Appeal E689 of 2021) [2024] KEHC 7644 (KLR) (Civ) (25 June 2024) (Judgment) Neutral citation: [2024] KEHC 7644 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CIVIL CIVIL APPEAL E689 OF 2021 DKN MAGARE, J JUNE 25, 2024 BETWEEN SAFARICOM PLC .................................................................................... APPELLANT AND JACKSON AMEYO SAYI .............................................................. 1ST RESPONDENT MOHAMMED JAMES .................................................................. 2ND RESPONDENT (Being an appeal from the Judgment and Decree of Hon. M. N. Mutua - RM in Milimani Small Claims Court SCCC No. 293 of 2021, delivered on 20th September, 2021) JUDGMENT 1. This is an appeal from the Judgment and Decree of the SCCC No. 293 of 2021. The Appellant was the Respondent. 2. The Appellant raised the following grounds:a. The learned Adjudicator erred in law by relying on the unsubstantiated assertion that the 2nd Respondent plead guilty as the basis for entering judgment against the Appellant. b. The learned Adjudicator erred in law by failing to place the sufficient burden of proof on the 1st Respondent. c. The learned Adjudicator erred in fact by failing to consider that the 1st Respondent knew the 2nd Respondent. d. The learned Adjudicator erred in fact by failing to take into consideration that the 1st Respondent sent money to the 2nd Respondent before the fraud was complete. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7644/eng@2024-06-25 1
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e. The learned Adjudicator erred in fact by failing to consider the security protocols put in place by the Appellant. f. The learned Adjudicator erred in fact by disregarding the nature and extent of M-pesa Customer Terms and Conditions. g. The learned Adjudicator erred in fact by finding the Appellant’s procedures deficient. 3. The claim relates to swapping and withdrawal of money. 4. The 1st Respondent claimed that data was disclosed to third parties. Analysis 5. The duty of this court is not to re-evaluate facts. The only question is whether confidential information was released by the Appellant or Respondent. The facts established that the 2nd Respondent was arrested while attempting to withdraw from Co-operative Bank. 6. The information about Co-operative Bank account is not resident with the Appellant. There is no question that there was withdrawal of money. However, the question in law was the fault. 7. There can be no liability without fault. It was not shown that the Appellant released any information. Without that the case against the Appellant remains tenuous and must as a corollary be dismissed. 8. In the end the court finds the Appeal on the question of breach of terms and conditions. The breach of customer end details are not part of the duty of care owed by the Appellant. Determination 9. In the circumstances I make the following orders:a. The Appeal is allowed. b. The Judgment of the Adjudicator given on 20/9/2021 is set aside. In lieu thereof the suit against the Appellant is dismissed. c. The Appellant shall bear its own costs in the Small Claims Court. d. The 1st Respondent shall refund the decretal sum together with interest from the respective dates of payment. e. The Appellant shall have costs of Kshs. 35,000/= for the Appeal. f. Judgment against the 2nd Respondent remains. g. 30 days stay of execution. h. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 25TH DAY OF JUNE, 2024. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7644/eng@2024-06-25 2
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Ms. Imparu for the Appellant No appearance for the Respondents Court Assistant – Jerusha https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/7644/eng@2024-06-25 3
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