Automated Summary
Transaction Type
Service Agreement for mobile network portability and service provision
Key Facts
Seven plaintiffs (Alex M Gakuru, Humphrey Atuti, Brian Kimani, Alice Njoki Muchira, Joseph Mwangi Ngatia, Mwaura Dennis Mbugua, and Jackson Enonda) sued Safaricom Limited, alleging unlawful deactivation of their mobile numbers during porting to other networks in 2011, resulting in business and personal losses. The court dismissed the suit due to lack of credible evidence proving breach of contract, policy non-compliance, or entitlement to damages. Plaintiffs failed to demonstrate how their constitutional rights were violated or quantify losses, with the defendant asserting the claims were unproven under Kenya's Evidence Act.
Issues
- Whether the plaintiffs are entitled to the reliefs sought in the plaint
- Whether the plaintiffs have made a case for breach of contract/policy against the defendant, resulting in loss
Holdings
- The court dismissed the plaintiffs' suit against Safaricom Limited for failure to provide credible evidence supporting their allegations of breach of contract and violation of constitutional rights. The judge emphasized that the plaintiffs did not prove the defendant's non-compliance with portability guidelines or demonstrate how their losses were caused by the defendant's actions.
- The court considered the hypothetical reliefs the plaintiffs sought if their case had succeeded, including an order for Safaricom to implement portability guidelines and damages. However, no awards were granted due to insufficient evidence of loss or punitive conduct by the defendant.
Remedies
The plaintiffs' suit is hereby dismissed with costs to the defendant. This includes the dismissal of all claims for implementation of mobile network porting guidelines, damages for loss of business, and exemplary/punitive damages, as the plaintiffs failed to prove their case on a balance of probabilities.
Legal Principles
- The court emphasized that the burden of proof lies with the party asserting a claim, requiring them to demonstrate the existence of the facts they plead. In this case, the plaintiffs failed to meet this obligation as they did not provide sufficient evidence to support their allegations against the defendant.
- The judge applied the standard of proof on a balance of probabilities, noting that the plaintiffs did not satisfy this threshold by presenting credible evidence to substantiate their claims of breach and loss.
Key Disputed Contract Clauses
- The contractual term stipulating that the defendant does not guarantee mobile service availability at all times, which was central to its defense against liability for network fluctuations.
- The contractual obligation to implement mobile number portability guidelines as mandated by the Communications Commission of Kenya, which the plaintiffs alleged was unilaterally breached by the defendant.
Precedent Name
- Hellen Wangari Wangechi v Carumera Muthoni Gathua
- Ann Njoki Kumena v KTDA Agency Ltd
Cited Statute
Evidence Act
Judge Name
JK Sergon, J
Damages / Relief Type
- Costs of the suit
- Exemplary/Punitive Damages
- Compensatory Damages for loss of business: Kshs 3,000,000
- Specific Performance: Order to fully implement mobile network porting guidelines and activate plaintiffs' ported numbers
Passage Text
- 35. From the record, I also did not come across any credible evidence by the plaintiffs to demonstrate the manner in which they suffered loss as a result thereof and that any loss suffered was the result of any act/omission by the defendant in order to give rise to liability.
- 41. In view of all the foregoing circumstances, I find that in the absence of credible evidence to support the plaintiffs' claim against the defendant, the suit is hereby dismissed with costs to the defendant.
- 39. It is trite law that he who alleges must prove. This legal position is found under the proviso of Section 107 of the Evidence Act which stipulates that a person who desires judgment on liability must prove that the facts pleaded exist.