Introduction
1. The Petition dated 10 th June 2024 is supported by the 1 st Petitioner’s affidavit in support of similar date.
2. The Petition challenges the reassignment and/or recycling of the deactivated but previously registered mobile telephone numbers owing to extended period of inactivity or non-use. The Petitioners contend that those numbers constitute an individual’s digital identity that provides linkage to delicate personal information, of which substantial risk of exposure to 3 rd Parties is created by their unfettered reassignment constituting an unconstitutional violation of the right to privacy under Article 31 (c) and (d) of the Constitution.
3. The Petitioners argued that prisoners have involuntarily been losing their digital identity due to long periods non-use or inactivity as a result of incarceration and this has exposed them to possible breach of their privacy as the previously registered numbers are reassigned to 3 rd Parties who end up becoming consumers of information that is supplied through those numbers as no notice is given of their change of status.
4. The Petitioners further contend this contravenes the right to equality as no law in Kenya prohibits anyone from having a phone or depriving them their digital identity.
5. Consequently, the Petitioners seek the following remedies against the Respondents:
i. A declaration that there exists a personal digital identity and a person's registered phone number forms part of his/her digital identity just like the physical national ID., Passport or Driving license.
ii. A declaration that every person has a fundamental right to protection of his/her privacy and digital identity.
iii. A declaration that prisoners/persons deprived of liberty retain the right to enjoy the digital identity through continued use of their mobile numbers while serving their prison terms.
iv. An order that persons deprived of liberty through imprisonment be allowed to have and use their mobile phones together with their registered numbers so as to prevent the loss of their digital identities.
v. A declaration that any law or policy that prohibit a prisoner from using a mobile phone does not pass the threshold of acceptable limitation envisaged in Article 24(1) and therefore unconstitutional.
vi. An order that the Kenya Prison Service facilitate prisoners to acquire mobile phones or digital devices for the purpose of staying updated and enjoying the right to digital identity.
Petitioner’s Case
6. The 1 st Petitioner, a prisoner serving 20-year sentence for the offence of murder avers that digital identity has become an integral component in today's economy and this has opened new opportunities in all sectors that now offer service through digitized processes.
7. He states that in Kenya, digital identity is widely embraced in the form of mobile identity wherein one is required to verify their identity through a One Time Password (OTP) or One Time Call (OTC) which is shared via a text message to a person’s mobile phone. For this reason, the Petitioner emphasizes that there is need to enhance digital ID protection in the digital space since mishandling of a digital asset can result in data breach.
8. The Petitioner states that once a person is convicted in Kenya, they automatically become ‘digitally dead’ as the Kenya Prisons Service does not allow prisoners to possess personal phones or other digital devices within the prison walls. As a result, many prisoners, have end up losing their phone numbers which comprise their digital identity because their mobile numbers are repossessed by mobile operators due to prolonged inactivity. The repossessed phone number is subsequently issued to a new client.
9. In his case, he stated that upon his conviction, he lost his phone number due to lengthy duration on non-use. He stated that he has six children who require his advice, mentorship and presence as a father. He adds that their schools had his mobile number through which they would share regular updates concerning the children’s progress but he is now unable to access that information.
10. He further depones that his business collapsed after he was convicted because he is no longer able to communicate with his employees. Further, he contended that his number was registered with institutions such banks, social organizations, Kenya Revenue Authority, insurance companies, among others. He states regular updates from those institutions and other sensitive information is now being received by third parties in breach of his right to privacy.
11. The Petitioner is aggrieved that various institutions which are unaware of this shift, continue to send the previous owner’s classified and sensitive information to the new owners, which is in violation of their right to privacy under Article 31 of the Constitution as read with the Data Protection Act.
12. The Petitioner states that recently, the Communication Authority of Kenya (C.A.K) in a bid to strengthen digital identity and eliminate digital crimes, conducted sim registration countrywide where, all active mobile numbers were registered and verified.
13. He thus contends that it is now safe for everyone to be allowed to own a phone or digital service in keeping with Article 27 of the Constitution. He as well points out that there is no law in Kenya that currently prohibits anyone from owning a phone and having a digital identity.
14. On the contrary, he avers that the Kenya Prison Service does not allow prisoners to own phones thus denying them the right to communicate, right to equality and non-discrimination, freedom of expression and the right to identity.
15. On this basis, he maintains that it is discriminatory to have prison policies that prevent prisoners from keeping and using their phones. As such, he seeks this Court’s intervention to issue the necessary orders to the Kenya Prison Service prisoners acquire phones and maintain their digital identities.
1 st Respondent’s Case
16. Opposing the Petition, the Respondents filed its Grounds of Opposition dated 9 th July 2024 on the premise that:
i. Whereas the Petitioner/imprisoned is entitled to the protection of all his fundamental rights and freedoms, the same is subject to reasonable and justifiable limitations taking into account the nature of the right or fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation, and the need to ensure that the enjoyment of rights and fundamental freedoms by the Petitioner/imprisoned does not prejudice the rights and fundamental freedoms of the public.
ii. By dint of Section 4 of the Persons Deprived of Liberty Act (PDLA), the right to privacy of the Petitioner/imprisoned may be limited for reasons inter-alia:
iii. If the limitation is for the purposes of maintenance and preservation of national security to the extent provided for in the Constitution.
iv. If the limitation is for the purposes of security and safety of law enforcement officials and the persons deprived of liberty under their care.
v. Where the enjoyment of that right prejudices or is likely to prejudice the rights and fundamental freedoms of others.
vi. By dint of Section 8 of the PDLA, the Petitioner/imprisoned at the facilitation of the 2 nd Respondent, has the right to communicate whether by telephone or other means with any person of their choice only upon the first instance of detention, being held in custody or imprisonment, and upon transfer or movement from one institution to another, without charge.
vii. The right to family of the Petitioner/imprisoned is adequately protected under Section 24 of the PDLA which provides for visitation of such persons.
viii. Further to the visitation rights provided for under section 24 of the PDLA, Section 25 of the Act also guarantees the right to family by requiring the 2 nd Respondent to designate certain days as family days during which the Petitioner/imprisoned may be visited by and interact with their family members at least once every three months.
ix. Whereas by dint of Article 51 of the Constitution the Petitioner/imprisoned retains all the rights and fundamental freedoms in the Bill of Rights, the rights sought in the Petition cannot issue as the same are clearly incompatible with the fact that the Petitioner/imprisoned is serving a lawful sentence and cannot therefore be granted as sought.
x. No evidence has been adduced before the Court demonstrating that the Petitioner/imprisoned has and continues to suffer prejudice, damages or violation of his rights and freedoms under the Constitution so as to warrant the intervention by grant of the reliefs sought.
xi. The rights alleged to have been violated are not absolute and have to be balanced in order to ensure that the enjoyment of rights and fundamental freedoms by the Petitioner/imprisoned does not prejudice the safety of the public.
xii. Grant of the reliefs sought would negate the purpose of incarceration which includes deterrence, incapacitation and rehabilitation, bearing in mind that the Petitioner/imprisoned is serving a lawful sentence, consequently the same would not advance the rule of law.
2 nd Respondent’s Case
17. The 2 nd Respondent in opposition to the Petition filed his Replying Affidavit on 23 rd July 2024.
18. Denying the 1 st Petitioner’s averments, he states that his duty is to ensure that offenders are contained in humane safe conditions in order to facilitate responsive administration of justice, rehabilitation, social integration and community protection.
19. He avers that under Section 68 of the Prisons Act, personal mobile phones and digital devices belonging to inmates are classified as prohibited articles since pose a threat to national security through potential recruitment and participation in planning, financing and furtherance of terrorism related activities and other criminal offences. As such, he argues that if inmates are allowed to have personal mobile phones, they may continue committing crimes through extortion, intimidation of witnesses and facilitation of criminal gang activities. He adds that by virtue of being in prison, some of the inmates’ rights such as this are limited since not all fundamental rights are absolute.
20. He points out that contrary to the 1 st Petitioner’s averment, all inmates are accorded the right to communicate with the outside world through supervised use of mobile phones, letters, and receipt of other personal items through other permitted channels. Equally, in compliance with Chapter 61 of the Prison Standing Orders and Rule 37 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR), inmates are allowed to communicate with their family and reputable friends at regular intervals, which is done through the Directorate of Rehabilitation and Welfare.
21. Additionally, inmates are accorded visitation rights so as to interact with their family and friends and likewise a family day, once every three months. This is done in accordance with Section 25 of the Persons Deprived of Liberty Act which is in line with Rule 58(b) of the UNSMR.
22. He avers that in relation to loss of inmates’ phone numbers and preservation of digital identity, they ought to liaise with CAK and the relevant bodies in seeking redress. Considering this, he argues that the Petition which is adjudged as misconceived presents no cause of action against the Respondents and thus vexatious, scandalous and an abuse of the Court process.
23. The 2 nd Respondent in light of this prays as follows:
a) A declaration that the grant of use of personal mobile phones or digital devices by inmates is incompatible with the fact that they are detained.
b) The suit be dismissed in its entirety and the Petitioner to bear the costs.
c) The Respondents be provided by any other relief that this Court may deem fit to grant.
1 st Petitioner’s Submissions
24. The 1 st Petitioner in support of the Petition filed undated submissions wherein he sought to discuss: whether this Court has competent jurisdiction to hear and determine the instant matter, whether there exists a human right to digital identity and that individual registered mobile phone numbers forms the primary source of the digital identity, whether persons deprived of liberty retain all rights upon detention; particularly the enjoyment of the right to digital identity through the regular usage of their registered phone numbers while in detention, whether the denial to enjoy the right to digital identity for persons deprived of liberty is consistent with provisions of Article 24 of the Constitution and whether that blatant denial of the enjoyment of this right affects the right of other persons of interest .
25. The 1 st Petitioner relying in Article 22, 23 and 165(3)(d) of the Constitution submitted that this Court has jurisdiction to entertain this matter since revolves around the alleged violation of prisoners’ rights under the Constitution and the Persons Deprived of Liberty Act. Reliance was placed in AOO and 6 Others vs Attorney General and Another [2017] eKLR where it was held that:
“Article 165(3)(d)(i) and (ii) of the Constitution vest powers in the high court to hear any question respecting the interpretation of the constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or any other law is inconsistent with or in contravention of the constitution. An unconstitutional statute is not law and more important judicial function includes the power to determine and apply the law, and this necessarily includes the power to determine the legality of statutes. The judiciary has special role in our system with respect to constitutional interpretation. Court are bound by the constitution and must interpret it when a dispute so requires.”
26. In the second issue, the 1 st Petitioner submitted that in this digital age, digital identity is primarily sourced in the registered mobile number of every individual. As such, he argued that digital identity should be declared a human right and fundamental freedoms within the purview of Article 12 on identification issued by state, Article 33 on freedom of expression and impacting of ideas, under Article 45 (1) (c) and Article 53(1) (e)(2) of the Constitution.
27. Referring to Wikipedia , he noted that digital identity is defined as a digital identity is data stored on computer systems relating to an individual, organization, application, or device. For individuals, it involves the collection of personal data that is essential for facilitating automated access to digital services, confirming one's identity on the internet, and allowing digital systems to manage interactions between different parties. It is a component of a person's social identity in the digital realm, often referred to as their online identity. Likewise, he highlighted that in an Article by Taylor Graham titled ‘ Mobile Phone Numbers Become the Primary Source of Identity’ , it was underscored that ‘ the widespread adoption of digital technology in both personal and professional spheres, ranging from mobile banking to healthcare to e-commerce, heavily relies on individuals’ digital identities. This has led to a crucial demand for solutions safeguarding both consumers and businesses. At the core of digital identity lies the phone number. When it comes to verifying a digital identity, the phone number is the single most important piece of data that businesses use to verify a person or company.’
28. Accordingly, the 1 st Petitioner argued that a person’s digital identity is directly attached to his or her phone number and when a person loses the phone number, they automatically lose their identity in the digital space. He submitted thus that one’s registered phone number is their identity. Without this, a person misses out on essential government and private sector services such as KRA. Further, without the phone number prisoners’ rights to express themselves and receive information are curtailed under Article 33(1) and 35 of the Constitution.
29. Turning to the third issue, the 1 st Petitioner argued that contrary to the Respondents assertion, prisoners retain all their rights and fundamental freedoms as envisaged under Article 51(1) of the Constitution except to the extent that any particular right of fundamental freedom in the bill of right is clearly incompatible with the fact that the person is detained, held in custody or imprisoned. In this case, the 1 st Petitioner contended that no law prohibits prisoners from owning and using their phones. Such denial therefore is argued to be in breach of Articles 25(a), 29(d) and (f) 33(1) and 47 of the Constitution as read with Section 8(3) of the Persons Deprived of Liberty Act. He added that active communication is an important aspect in the rehabilitation process.
30. For this reason, the 1 st Petitioner in the following issue, submitted that the Respondents denial to enjoy their digital identity does not conform with Article 24 (2) (e) of the Constitution as read with Section 4 of the Persons deprived of liberty Act. The 1 st Petitioner stressed that the Respondents are under an obligation to prove how using registered mobile phone by persons deprived of liberty is a threat to security. In his view, such security threats, should be treated as exceptional cases and be dealt with on a case-by-case basis instead of blanket denial of the usage of such mobile phone.
31. To buttress this point reliance was placed in Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR where it was held that:
“A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.”
32. Moving on, the 1 st Petitioner answering the fifth issue in the affirmative argued that the denial of the right to enjoyment of the digital identity has violated the rights of other persons of interest particularly the children and family members who depend on them for care and protection in violation of Article 43,45 and 53(1) of the Constitution. Further prisoners are unable to alert the relevant institutions such as KRA of their status and eventually due to dormancy, their phone numbers are deactivated and issued to a third party who continues to receive their sensitive information. This he argues is contrary to Article 31 of the Constitution and provisions of the Computer Misuse and Cybercrime Act.
33. In sum, the 1 st Petitioner contended that the 2 nd Respondent’s directive to prohibit prisoners from owning and using dedicated phones registered with their identities is inconsistent with the laws of Kenya and hence unconstitutional.
2 nd Petitioner’s Submissions
34. The 2 nd Petitioner in like manner filed undated submissions in support of the Petition. He depones that he was sentenced to death on 12 th October 2011 for the offence of murder wherein he was later on resentenced to 20 years.
35. He depones that following his arrest on 24 th January 2009, he never accessed his mobile phone and phone number 0722274548, again. He informs that this line was registered to Safaricom M-pesa services, Cooperative Bank, Kenya Commercial Bank, Equity Bank, KRA, Nairobi Hospital among many others. He depones that his line has since been issued to another person, one Everline Ngarum. He avers that his information continues to be shared on this line.
36. The 2 nd Petitioner in light of these highlighted the issues for discussion as: whether there exists digital identity and whether this digital identity is primarily associated to individual registered mobile number?, whether a person deprived of liberty enjoys all rights under the Constitution and hence entitled to enjoy this digital identity as a right under the Bill of right and fundamental freedoms, whether taking away the 2 nd Petitioner’s phone and registered line amount to the limitation allowed under Article 24 of the constitution which speaks of limitation as opposed to total denial of a right and other fundamental freedoms, whether the digital identity which primarily associated with one’s mobile line should be enjoyed by prisoners by allowing them to use their registered mobile line while in custody and whether families of a deceased person should be given a priority in retaining the number of their demised kin .
37. On the first issue, the 2 nd Petitioner argued that there cannot be doubt as to the existence of digital identity. He stated that this forms the personal unique identity that is consistent and reliable in the digital space and which in turn allows an individual to conduct online transactions online or otherwise in absence of physical presence in the institution of interest. In his view, the centrality of this identity is a person’s registered mobile number. He states that this number is used to register with e-citizen, Social Health Authority (SHA) among others. He pointed out that while the national identity card is a primary identity key, it is not sufficient to conduct online transactions without a mobile number.
38. Considering this, he contends that it is impossible for a Kenyan to operate efficiently without a digital identity and the existence of the same cannot be denied. In equal measure, he asserted that digital identity is a human right as one cannot access any online services without it. As such he stressed that this Court should protect this right under Article 19 and 20 of the Constitution.
39. On the second issue, the 2 nd Petitioner echoed that a person deprived of liberty, retains all human rights and freedoms. He submitted that their rights can only be limited within the meaning of Article 24 of the Constitution. In the circumstances of this case, he argued that when he was deprived of his liberty, his right to digital identity was not limited as envisaged by Section 4 of the Persons Deprived of Liberty Act and by extension provisions of Article 24 but that the right was absolutely denied.
40. He as well submitted that while the Respondents purport that prisoners can communicate with ease with their families, this is not the case as the same is limited to the extent it lacks a meaningful purpose. In essence, he stated that the key issue in this matter is the prisoners’ right to access individual digital identity and receive information from institutions of interest through their designated registered mobile phone lines.
41. Accordingly, the 2 nd Petitioner in the next issue, stressed that the act of taking away their mobile phones and registered lines does not conform with the limitation provided under Article 24 of the Constitution as such denial is not explicitly provided for by law. He underscored thus that the Respondents were required to demonstrate that the restriction is reasonable and justifiable in an open democratic society, which they have not done.
42. On the fourth issue, the 2 nd Petitioner submitted that the gist of the matter is their communication with the outside world which is sparingly and reluctantly done in prison once a month for 3 minutes. In his opinion, this affirms that there is total denial of the right to digital identity that is attached to their mobile numbers. He argued that there are lesser ways to restrict the enjoyment of the right to digital identity. He pointed out that the Respondents argument on security was not corroborated and issue of terrorism dubbed a matter of conjecture.
43. Relying on a comparable matter in Odhiambo v Officer in Charge, Kamiti Medium Prison & another [2024] KEHC 14379 (KLR) , the 2 nd Petitioner underscored that the Court held that:
“For the reasons I have given, I allow the applicant’s application, and further, by the powers conferred upon this Court under section 11(1) of the Fair Administrative Action Act and, for the avoidance of doubt, I hereby specifically order as follows:
A declaration is hereby made that the respondents’ decision to deny the applicant access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University is unconstitutional and, therefore, null and void, to the extent that it is contrary to articles 29(f), 43(1)(f) and 51(1) of the constitution;
A declaration is hereby made that the respondents’ decision to deny the applicant access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University is illegal or unlawful to the extent that it is contrary section 18 of the Persons Deprived of Liberty Act, cap. 90A and article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights.
A mandatory order or an order in the nature of mandamus is hereby granted compelling the respondents to, forthwith and, in any event, not later than seven days of the date of this judgment, allow the applicant access the infrastructure, study materials and such tools as are necessary, including the tools handed over to Kamiti medium prison upon the applicant’s transfer to that prison, for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University.
An order of prohibition is hereby issued prohibiting the respondents from barring the applicant, or in any other way interfering with the applicant’s access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue post-graduate Masters of Science in Project Management program at Mount Kenya University.”
44. Turning to the next issue, the 2 nd Petitioner submitted that the mobile numbers of the demised family members must be preserved as property of the deceased and be dealt with under the law of succession. In the alternative, he submitted that family members must be allowed to make an application as to whether they surrender such numbers to the service providers. This is because once the mobile number is bought by a customer it becomes the property of the customer and service providers cannot resell that property without the authority of the family of the deceased relative.
Respondents’ Submissions
45. These Respondents through Deputy Chief State Counsel, Kaumba S.O. filed submissions dated 14 th February 2025.
46. Counsel recapping the averments in the 2 nd Respondent’s affidavit maintained that all detained persons are facilitated to have communication with the outside world except that the facilitation is through use of scrutinized and designated communication channels and gadgets, and which communication is facilitated by the Prisons Service.
47. Counsel underscored that Article 25 of the Constitution, the right of a prisoner under Article 51(1) of the Constitution to communicate with family members using personal devices is not and cannot be an absolute right as advanced.
48. Counsel submitted that Article 24 of the Constitution, provides that any restrictions on the rights or fundamental freedoms, in this case the prisoners, must be by law and be reasonable and justifiable in an open and democratic society. Counsel submitted that Article 24(1) (d) of the Constitution decrees that the limitation of fundamental rights and freedoms may conclude the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
49. In this matter, Counsel contended that the scrutiny of the communication channels, and the mode and manner of facilitating communication is informed by the Prisons Act, the Persons Deprived of Liberty Act and the UNSMR. Counsel submitted that Section 58 of the Prisons Act criminalizes conveying or causing to convey any means of communication including letter or document without lawful authority. Section 8 of the Persons Deprived of Liberty Act provides for right of detained to communicate however, the same is not absolute save for the first instance of detention, being held in custody or imprisonment and upon transfer or movement from one institution to another.
50. To buttress their case, Counsel relied in Otieno v Ministry of Interior & Co-ordination of National Government (State Department for Correctional Services) & 2 others [2024] KEHC 1639 (KLR) where it was held that:
“My humble view is that the United Nations Standard Minimum rules for Treatment of Offenders are neither general rules of International law nor are they a treaty or a convention to be applied automatically as if they were the laws of Kenya even in absence of any particular legislation directly addressing the subject matter raised by the petitioner. This is not to say these rules have relevance to Kenya whatsoever. The rules may not be legally binding but they are universally accepted standards designed as the good practice or model guide on treatment of offenders. Kenya forms part of the civilized world and cannot therefore remai
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1. The Petition dated 10 th June 2024 is supported by the 1 st Petitioner’s affidavit in support of similar date.
2. The Petition challenges the reassignment and/or recycling of the deactivated but previously registered mobile telephone numbers owing to extended period of inactivity or non-use. The Petitioners contend that those numbers constitute an individual’s digital identity that provides linkage to delicate personal information, of which substantial risk of exposure to 3 rd Parties is created by their unfettered reassignment constituting an unconstitutional violation of the right to privacy under Article 31 (c) and (d) of the Constitution.
3. The Petitioners argued that prisoners have involuntarily been losing their digital identity due to long periods non-use or inactivity as a result of incarceration and this has exposed them to possible breach of their privacy as the previously registered numbers are reassigned to 3 rd Parties who end up becoming consumers of information that is supplied through those numbers as no notice is given of their change of status.
4. The Petitioners further contend this contravenes the right to equality as no law in Kenya prohibits anyone from having a phone or depriving them their digital identity.
5. Consequently, the Petitioners seek the following remedies against the Respondents:
i. A declaration that there exists a personal digital identity and a person's registered phone number forms part of his/her digital identity just like the physical national ID., Passport or Driving license.
ii. A declaration that every person has a fundamental right to protection of his/her privacy and digital identity.
iii. A declaration that prisoners/persons deprived of liberty retain the right to enjoy the digital identity through continued use of their mobile numbers while serving their prison terms.
iv. An order that persons deprived of liberty through imprisonment be allowed to have and use their mobile phones together with their registered numbers so as to prevent the loss of their digital identities.
v. A declaration that any law or policy that prohibit a prisoner from using a mobile phone does not pass the threshold of acceptable limitation envisaged in Article 24(1) and therefore unconstitutional.
vi. An order that the Kenya Prison Service facilitate prisoners to acquire mobile phones or digital devices for the purpose of staying updated and enjoying the right to digital identity.
Petitioner’s Case
6. The 1 st Petitioner, a prisoner serving 20-year sentence for the offence of murder avers that digital identity has become an integral component in today's economy and this has opened new opportunities in all sectors that now offer service through digitized processes.
7. He states that in Kenya, digital identity is widely embraced in the form of mobile identity wherein one is required to verify their identity through a One Time Password (OTP) or One Time Call (OTC) which is shared via a text message to a person’s mobile phone. For this reason, the Petitioner emphasizes that there is need to enhance digital ID protection in the digital space since mishandling of a digital asset can result in data breach.
8. The Petitioner states that once a person is convicted in Kenya, they automatically become ‘digitally dead’ as the Kenya Prisons Service does not allow prisoners to possess personal phones or other digital devices within the prison walls. As a result, many prisoners, have end up losing their phone numbers which comprise their digital identity because their mobile numbers are repossessed by mobile operators due to prolonged inactivity. The repossessed phone number is subsequently issued to a new client.
9. In his case, he stated that upon his conviction, he lost his phone number due to lengthy duration on non-use. He stated that he has six children who require his advice, mentorship and presence as a father. He adds that their schools had his mobile number through which they would share regular updates concerning the children’s progress but he is now unable to access that information.
10. He further depones that his business collapsed after he was convicted because he is no longer able to communicate with his employees. Further, he contended that his number was registered with institutions such banks, social organizations, Kenya Revenue Authority, insurance companies, among others. He states regular updates from those institutions and other sensitive information is now being received by third parties in breach of his right to privacy.
11. The Petitioner is aggrieved that various institutions which are unaware of this shift, continue to send the previous owner’s classified and sensitive information to the new owners, which is in violation of their right to privacy under Article 31 of the Constitution as read with the Data Protection Act.
12. The Petitioner states that recently, the Communication Authority of Kenya (C.A.K) in a bid to strengthen digital identity and eliminate digital crimes, conducted sim registration countrywide where, all active mobile numbers were registered and verified.
13. He thus contends that it is now safe for everyone to be allowed to own a phone or digital service in keeping with Article 27 of the Constitution. He as well points out that there is no law in Kenya that currently prohibits anyone from owning a phone and having a digital identity.
14. On the contrary, he avers that the Kenya Prison Service does not allow prisoners to own phones thus denying them the right to communicate, right to equality and non-discrimination, freedom of expression and the right to identity.
15. On this basis, he maintains that it is discriminatory to have prison policies that prevent prisoners from keeping and using their phones. As such, he seeks this Court’s intervention to issue the necessary orders to the Kenya Prison Service prisoners acquire phones and maintain their digital identities.
1 st Respondent’s Case
16. Opposing the Petition, the Respondents filed its Grounds of Opposition dated 9 th July 2024 on the premise that:
i. Whereas the Petitioner/imprisoned is entitled to the protection of all his fundamental rights and freedoms, the same is subject to reasonable and justifiable limitations taking into account the nature of the right or fundamental freedom, the importance of the purpose of the limitation, the nature and extent of the limitation, and the need to ensure that the enjoyment of rights and fundamental freedoms by the Petitioner/imprisoned does not prejudice the rights and fundamental freedoms of the public.
ii. By dint of Section 4 of the Persons Deprived of Liberty Act (PDLA), the right to privacy of the Petitioner/imprisoned may be limited for reasons inter-alia:
iii. If the limitation is for the purposes of maintenance and preservation of national security to the extent provided for in the Constitution.
iv. If the limitation is for the purposes of security and safety of law enforcement officials and the persons deprived of liberty under their care.
v. Where the enjoyment of that right prejudices or is likely to prejudice the rights and fundamental freedoms of others.
vi. By dint of Section 8 of the PDLA, the Petitioner/imprisoned at the facilitation of the 2 nd Respondent, has the right to communicate whether by telephone or other means with any person of their choice only upon the first instance of detention, being held in custody or imprisonment, and upon transfer or movement from one institution to another, without charge.
vii. The right to family of the Petitioner/imprisoned is adequately protected under Section 24 of the PDLA which provides for visitation of such persons.
viii. Further to the visitation rights provided for under section 24 of the PDLA, Section 25 of the Act also guarantees the right to family by requiring the 2 nd Respondent to designate certain days as family days during which the Petitioner/imprisoned may be visited by and interact with their family members at least once every three months.
ix. Whereas by dint of Article 51 of the Constitution the Petitioner/imprisoned retains all the rights and fundamental freedoms in the Bill of Rights, the rights sought in the Petition cannot issue as the same are clearly incompatible with the fact that the Petitioner/imprisoned is serving a lawful sentence and cannot therefore be granted as sought.
x. No evidence has been adduced before the Court demonstrating that the Petitioner/imprisoned has and continues to suffer prejudice, damages or violation of his rights and freedoms under the Constitution so as to warrant the intervention by grant of the reliefs sought.
xi. The rights alleged to have been violated are not absolute and have to be balanced in order to ensure that the enjoyment of rights and fundamental freedoms by the Petitioner/imprisoned does not prejudice the safety of the public.
xii. Grant of the reliefs sought would negate the purpose of incarceration which includes deterrence, incapacitation and rehabilitation, bearing in mind that the Petitioner/imprisoned is serving a lawful sentence, consequently the same would not advance the rule of law.
2 nd Respondent’s Case
17. The 2 nd Respondent in opposition to the Petition filed his Replying Affidavit on 23 rd July 2024.
18. Denying the 1 st Petitioner’s averments, he states that his duty is to ensure that offenders are contained in humane safe conditions in order to facilitate responsive administration of justice, rehabilitation, social integration and community protection.
19. He avers that under Section 68 of the Prisons Act, personal mobile phones and digital devices belonging to inmates are classified as prohibited articles since pose a threat to national security through potential recruitment and participation in planning, financing and furtherance of terrorism related activities and other criminal offences. As such, he argues that if inmates are allowed to have personal mobile phones, they may continue committing crimes through extortion, intimidation of witnesses and facilitation of criminal gang activities. He adds that by virtue of being in prison, some of the inmates’ rights such as this are limited since not all fundamental rights are absolute.
20. He points out that contrary to the 1 st Petitioner’s averment, all inmates are accorded the right to communicate with the outside world through supervised use of mobile phones, letters, and receipt of other personal items through other permitted channels. Equally, in compliance with Chapter 61 of the Prison Standing Orders and Rule 37 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR), inmates are allowed to communicate with their family and reputable friends at regular intervals, which is done through the Directorate of Rehabilitation and Welfare.
21. Additionally, inmates are accorded visitation rights so as to interact with their family and friends and likewise a family day, once every three months. This is done in accordance with Section 25 of the Persons Deprived of Liberty Act which is in line with Rule 58(b) of the UNSMR.
22. He avers that in relation to loss of inmates’ phone numbers and preservation of digital identity, they ought to liaise with CAK and the relevant bodies in seeking redress. Considering this, he argues that the Petition which is adjudged as misconceived presents no cause of action against the Respondents and thus vexatious, scandalous and an abuse of the Court process.
23. The 2 nd Respondent in light of this prays as follows:
a) A declaration that the grant of use of personal mobile phones or digital devices by inmates is incompatible with the fact that they are detained.
b) The suit be dismissed in its entirety and the Petitioner to bear the costs.
c) The Respondents be provided by any other relief that this Court may deem fit to grant.
1 st Petitioner’s Submissions
24. The 1 st Petitioner in support of the Petition filed undated submissions wherein he sought to discuss: whether this Court has competent jurisdiction to hear and determine the instant matter, whether there exists a human right to digital identity and that individual registered mobile phone numbers forms the primary source of the digital identity, whether persons deprived of liberty retain all rights upon detention; particularly the enjoyment of the right to digital identity through the regular usage of their registered phone numbers while in detention, whether the denial to enjoy the right to digital identity for persons deprived of liberty is consistent with provisions of Article 24 of the Constitution and whether that blatant denial of the enjoyment of this right affects the right of other persons of interest .
25. The 1 st Petitioner relying in Article 22, 23 and 165(3)(d) of the Constitution submitted that this Court has jurisdiction to entertain this matter since revolves around the alleged violation of prisoners’ rights under the Constitution and the Persons Deprived of Liberty Act. Reliance was placed in AOO and 6 Others vs Attorney General and Another [2017] eKLR where it was held that:
“Article 165(3)(d)(i) and (ii) of the Constitution vest powers in the high court to hear any question respecting the interpretation of the constitution including the determination of the question whether or not any law is inconsistent with or in contravention of the constitution and also the question whether anything said to be done under the authority of the constitution or any other law is inconsistent with or in contravention of the constitution. An unconstitutional statute is not law and more important judicial function includes the power to determine and apply the law, and this necessarily includes the power to determine the legality of statutes. The judiciary has special role in our system with respect to constitutional interpretation. Court are bound by the constitution and must interpret it when a dispute so requires.”
26. In the second issue, the 1 st Petitioner submitted that in this digital age, digital identity is primarily sourced in the registered mobile number of every individual. As such, he argued that digital identity should be declared a human right and fundamental freedoms within the purview of Article 12 on identification issued by state, Article 33 on freedom of expression and impacting of ideas, under Article 45 (1) (c) and Article 53(1) (e)(2) of the Constitution.
27. Referring to Wikipedia , he noted that digital identity is defined as a digital identity is data stored on computer systems relating to an individual, organization, application, or device. For individuals, it involves the collection of personal data that is essential for facilitating automated access to digital services, confirming one's identity on the internet, and allowing digital systems to manage interactions between different parties. It is a component of a person's social identity in the digital realm, often referred to as their online identity. Likewise, he highlighted that in an Article by Taylor Graham titled ‘ Mobile Phone Numbers Become the Primary Source of Identity’ , it was underscored that ‘ the widespread adoption of digital technology in both personal and professional spheres, ranging from mobile banking to healthcare to e-commerce, heavily relies on individuals’ digital identities. This has led to a crucial demand for solutions safeguarding both consumers and businesses. At the core of digital identity lies the phone number. When it comes to verifying a digital identity, the phone number is the single most important piece of data that businesses use to verify a person or company.’
28. Accordingly, the 1 st Petitioner argued that a person’s digital identity is directly attached to his or her phone number and when a person loses the phone number, they automatically lose their identity in the digital space. He submitted thus that one’s registered phone number is their identity. Without this, a person misses out on essential government and private sector services such as KRA. Further, without the phone number prisoners’ rights to express themselves and receive information are curtailed under Article 33(1) and 35 of the Constitution.
29. Turning to the third issue, the 1 st Petitioner argued that contrary to the Respondents assertion, prisoners retain all their rights and fundamental freedoms as envisaged under Article 51(1) of the Constitution except to the extent that any particular right of fundamental freedom in the bill of right is clearly incompatible with the fact that the person is detained, held in custody or imprisoned. In this case, the 1 st Petitioner contended that no law prohibits prisoners from owning and using their phones. Such denial therefore is argued to be in breach of Articles 25(a), 29(d) and (f) 33(1) and 47 of the Constitution as read with Section 8(3) of the Persons Deprived of Liberty Act. He added that active communication is an important aspect in the rehabilitation process.
30. For this reason, the 1 st Petitioner in the following issue, submitted that the Respondents denial to enjoy their digital identity does not conform with Article 24 (2) (e) of the Constitution as read with Section 4 of the Persons deprived of liberty Act. The 1 st Petitioner stressed that the Respondents are under an obligation to prove how using registered mobile phone by persons deprived of liberty is a threat to security. In his view, such security threats, should be treated as exceptional cases and be dealt with on a case-by-case basis instead of blanket denial of the usage of such mobile phone.
31. To buttress this point reliance was placed in Kenya Human Rights Commission v Communications Authority of Kenya & 4 others [2018] eKLR where it was held that:
“A limitation of a constitutional right will be constitutionally permissible if (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (“proportionality stricto sensu” or “balancing”) between the importance of achieving the proper purpose and the special importance of preventing the limitation on the constitutional right.”
32. Moving on, the 1 st Petitioner answering the fifth issue in the affirmative argued that the denial of the right to enjoyment of the digital identity has violated the rights of other persons of interest particularly the children and family members who depend on them for care and protection in violation of Article 43,45 and 53(1) of the Constitution. Further prisoners are unable to alert the relevant institutions such as KRA of their status and eventually due to dormancy, their phone numbers are deactivated and issued to a third party who continues to receive their sensitive information. This he argues is contrary to Article 31 of the Constitution and provisions of the Computer Misuse and Cybercrime Act.
33. In sum, the 1 st Petitioner contended that the 2 nd Respondent’s directive to prohibit prisoners from owning and using dedicated phones registered with their identities is inconsistent with the laws of Kenya and hence unconstitutional.
2 nd Petitioner’s Submissions
34. The 2 nd Petitioner in like manner filed undated submissions in support of the Petition. He depones that he was sentenced to death on 12 th October 2011 for the offence of murder wherein he was later on resentenced to 20 years.
35. He depones that following his arrest on 24 th January 2009, he never accessed his mobile phone and phone number 0722274548, again. He informs that this line was registered to Safaricom M-pesa services, Cooperative Bank, Kenya Commercial Bank, Equity Bank, KRA, Nairobi Hospital among many others. He depones that his line has since been issued to another person, one Everline Ngarum. He avers that his information continues to be shared on this line.
36. The 2 nd Petitioner in light of these highlighted the issues for discussion as: whether there exists digital identity and whether this digital identity is primarily associated to individual registered mobile number?, whether a person deprived of liberty enjoys all rights under the Constitution and hence entitled to enjoy this digital identity as a right under the Bill of right and fundamental freedoms, whether taking away the 2 nd Petitioner’s phone and registered line amount to the limitation allowed under Article 24 of the constitution which speaks of limitation as opposed to total denial of a right and other fundamental freedoms, whether the digital identity which primarily associated with one’s mobile line should be enjoyed by prisoners by allowing them to use their registered mobile line while in custody and whether families of a deceased person should be given a priority in retaining the number of their demised kin .
37. On the first issue, the 2 nd Petitioner argued that there cannot be doubt as to the existence of digital identity. He stated that this forms the personal unique identity that is consistent and reliable in the digital space and which in turn allows an individual to conduct online transactions online or otherwise in absence of physical presence in the institution of interest. In his view, the centrality of this identity is a person’s registered mobile number. He states that this number is used to register with e-citizen, Social Health Authority (SHA) among others. He pointed out that while the national identity card is a primary identity key, it is not sufficient to conduct online transactions without a mobile number.
38. Considering this, he contends that it is impossible for a Kenyan to operate efficiently without a digital identity and the existence of the same cannot be denied. In equal measure, he asserted that digital identity is a human right as one cannot access any online services without it. As such he stressed that this Court should protect this right under Article 19 and 20 of the Constitution.
39. On the second issue, the 2 nd Petitioner echoed that a person deprived of liberty, retains all human rights and freedoms. He submitted that their rights can only be limited within the meaning of Article 24 of the Constitution. In the circumstances of this case, he argued that when he was deprived of his liberty, his right to digital identity was not limited as envisaged by Section 4 of the Persons Deprived of Liberty Act and by extension provisions of Article 24 but that the right was absolutely denied.
40. He as well submitted that while the Respondents purport that prisoners can communicate with ease with their families, this is not the case as the same is limited to the extent it lacks a meaningful purpose. In essence, he stated that the key issue in this matter is the prisoners’ right to access individual digital identity and receive information from institutions of interest through their designated registered mobile phone lines.
41. Accordingly, the 2 nd Petitioner in the next issue, stressed that the act of taking away their mobile phones and registered lines does not conform with the limitation provided under Article 24 of the Constitution as such denial is not explicitly provided for by law. He underscored thus that the Respondents were required to demonstrate that the restriction is reasonable and justifiable in an open democratic society, which they have not done.
42. On the fourth issue, the 2 nd Petitioner submitted that the gist of the matter is their communication with the outside world which is sparingly and reluctantly done in prison once a month for 3 minutes. In his opinion, this affirms that there is total denial of the right to digital identity that is attached to their mobile numbers. He argued that there are lesser ways to restrict the enjoyment of the right to digital identity. He pointed out that the Respondents argument on security was not corroborated and issue of terrorism dubbed a matter of conjecture.
43. Relying on a comparable matter in Odhiambo v Officer in Charge, Kamiti Medium Prison & another [2024] KEHC 14379 (KLR) , the 2 nd Petitioner underscored that the Court held that:
“For the reasons I have given, I allow the applicant’s application, and further, by the powers conferred upon this Court under section 11(1) of the Fair Administrative Action Act and, for the avoidance of doubt, I hereby specifically order as follows:
A declaration is hereby made that the respondents’ decision to deny the applicant access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University is unconstitutional and, therefore, null and void, to the extent that it is contrary to articles 29(f), 43(1)(f) and 51(1) of the constitution;
A declaration is hereby made that the respondents’ decision to deny the applicant access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University is illegal or unlawful to the extent that it is contrary section 18 of the Persons Deprived of Liberty Act, cap. 90A and article 13 (2) (c) of the International Covenant on Economic, Social and Cultural Rights.
A mandatory order or an order in the nature of mandamus is hereby granted compelling the respondents to, forthwith and, in any event, not later than seven days of the date of this judgment, allow the applicant access the infrastructure, study materials and such tools as are necessary, including the tools handed over to Kamiti medium prison upon the applicant’s transfer to that prison, for the applicant to continue and pursue a post-graduate Masters of Science in Project Management program at Mount Kenya University.
An order of prohibition is hereby issued prohibiting the respondents from barring the applicant, or in any other way interfering with the applicant’s access to the infrastructure, study materials and such tools as are necessary for the applicant to continue and pursue post-graduate Masters of Science in Project Management program at Mount Kenya University.”
44. Turning to the next issue, the 2 nd Petitioner submitted that the mobile numbers of the demised family members must be preserved as property of the deceased and be dealt with under the law of succession. In the alternative, he submitted that family members must be allowed to make an application as to whether they surrender such numbers to the service providers. This is because once the mobile number is bought by a customer it becomes the property of the customer and service providers cannot resell that property without the authority of the family of the deceased relative.
Respondents’ Submissions
45. These Respondents through Deputy Chief State Counsel, Kaumba S.O. filed submissions dated 14 th February 2025.
46. Counsel recapping the averments in the 2 nd Respondent’s affidavit maintained that all detained persons are facilitated to have communication with the outside world except that the facilitation is through use of scrutinized and designated communication channels and gadgets, and which communication is facilitated by the Prisons Service.
47. Counsel underscored that Article 25 of the Constitution, the right of a prisoner under Article 51(1) of the Constitution to communicate with family members using personal devices is not and cannot be an absolute right as advanced.
48. Counsel submitted that Article 24 of the Constitution, provides that any restrictions on the rights or fundamental freedoms, in this case the prisoners, must be by law and be reasonable and justifiable in an open and democratic society. Counsel submitted that Article 24(1) (d) of the Constitution decrees that the limitation of fundamental rights and freedoms may conclude the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others.
49. In this matter, Counsel contended that the scrutiny of the communication channels, and the mode and manner of facilitating communication is informed by the Prisons Act, the Persons Deprived of Liberty Act and the UNSMR. Counsel submitted that Section 58 of the Prisons Act criminalizes conveying or causing to convey any means of communication including letter or document without lawful authority. Section 8 of the Persons Deprived of Liberty Act provides for right of detained to communicate however, the same is not absolute save for the first instance of detention, being held in custody or imprisonment and upon transfer or movement from one institution to another.
50. To buttress their case, Counsel relied in Otieno v Ministry of Interior & Co-ordination of National Government (State Department for Correctional Services) & 2 others [2024] KEHC 1639 (KLR) where it was held that:
“My humble view is that the United Nations Standard Minimum rules for Treatment of Offenders are neither general rules of International law nor are they a treaty or a convention to be applied automatically as if they were the laws of Kenya even in absence of any particular legislation directly addressing the subject matter raised by the petitioner. This is not to say these rules have relevance to Kenya whatsoever. The rules may not be legally binding but they are universally accepted standards designed as the good practice or model guide on treatment of offenders. Kenya forms part of the civilized world and cannot therefore remai
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