Magare Gikenyi J Benjamin Vs Safaricom Plc & 2 Others (Petition No. E554 of 2022) [2024]

On 28th October 2022, Safaricom PLC (Safaricom), the largest telecommunication company in Kenya, issued a notice through its website and other media platform to the effect that all Bonga points that were more than 3 years old were to expire on 1st January 2023 and would be unavailable for redemption.

A. Petitioner’s Case

Aggrieved by the above information, Magare Gikenyi Benjamin, the Petitioner herein, filed the referenced petition contending that the notice was an ambush to the public and would affect millions of subscribers who would lose the Bonga points worth billions of shillings.

The Petitioner asserted that the introduction of expiry dates on Bonga points was done without the input of subscribers, breached their legitimate expectation and the duty of care owed to subscribers by the Safaricom.

That the impugned action by Safaricom was an arbitrary, irrational and out of sync with majority of the subscribers, since the notice was issued without consultations. Subscribers were therefore, condemned unheard contrary to Article 47 of the Constitution.

The Petitioner further stated that the actions of Safaricom violated Article 46(1)(b) and (c) of the Constitution because the subscribers were never informed that Bonga points would have expiry dates. As such, Safaricom’s action was tantamount to taking away the subscribers’ economic right.

According to the Petitioner, Safaricom was required to act within the law and hence its unilateral actions of introducing the expiry dates on Bonga points contravened the consumer protection rights under Article 46 of the Constitution and was meant to entrench unfair gain to Safaricom.

It was the Petitioner’s further argument that Safaricom’s subscribers having been loyal to the company and accumulated Bonga points, had acquired an economic interest. They could, therefore, redeem their Bonga points as and when they deemed it necessary without being forced to redeem the points immediately or they risked losing the points.

B. Safaricom’s case
In opposing the Petition, Safaricom argued that as a way of appreciating its customers, it had awarded them with loyalty points (Bonga points) as part of customer loyalty program available to all pre-pay and post-pay subscribers. The Bonga points would be redeemed for rewards such as, minutes of talk time; data bundles; MMS; SMS bundles and goods and services redeemable at select retail outlets.

That the customers participating in the scheme consented to and expressly accepted to be bound by terms and conditions for Bonga Loyalty Programme and Non-Merchandise Bonga Redemption service which could be updated from time to time. The Bonga points scheme was not mandatory and customers could choose to opt into the scheme as they pleased.

Safaricom further argued that it updated the terms and conditions for Bonga points Programme and non-merchandise Bonga redemption service on 28th June 2022 to the effect that effective 1st January 2023, all Bonga points older than 3 years were to expire and would be unavailable for redemption. The Bonga points would also expire immediately in the event a user’s line was deleted as a result of inactivity.

Safaricom further asserted that it had publicized the change of terms and conditions to the public through its website and other media outlets. Moreover, before making the update, the Communication Authority of Kenya was also notified and had not issued any objection to the same.

C. Analysis of Legal Arguments in support of the judgment

In arriving at its final judgment, the court sought to determine whether there was a violation of Article 46 of the Constitution on consumer rights in Safaricom introducing the expiry dates on Bonga points.

The Court observed that Safaricom introduced the Bonga Points Scheme with the intention of rewarding loyal customers for buying into and using its services and products, a scheme that had not been solicited for by customers.

That the reward was not based on any other conditions and had no expiry dates. The customers joined the scheme, used Safaricom’s services and products and were duly rewarded the loyalty points without any other conditions, and continued to do so. That once a customer was rewarded, the points became his property. The customer who was a consumer, could use the loyalty points under the terms they were acquired. That Safaricom ceased to be the owner of those points as soon as they were awarded to the customer and formed the consumer’s economic interests protected under Article 46 of the Constitution.

Further, the Court noted that the argument by Safaricom that it reviewed its terms and conditions relating to Bonga Points by introducing expiry dates could not hold as any change on the terms and conditions if reviewed, could not act retrospectively as no action could be taken to affect a right that had accrued prior to such changes.

It was the Court’s further findings that the Bong point rewarded also created a legitimate expectation on customers, that is, once registered for Bonga Points rewards, a customers had a legitimate expectation that they would earn the points for as long as they were subscribers and had no timelines within which they must redeem the points. To some, the points were an investment and Safaricom had an obligation to facilitate redemption of the points from time to time, but could not impose expiry dates that were not part of the conditions during subscription.

That it would be ironical thus for Safaricom to insist on its customers continuing to sign up to its service with a promise to earn Bong Points but fail to live up to its undertaking and walk away by introducing expiry dates to the disadvantage of loyal customers. The undertaking in this case, having been made in the context of private law contract, the legitimate expectation arising therefrom was sufficient and capable of enforcement.

Based on the above analysis, the Court proceeded to make a declaration that the public notices issued by Safaricom purporting to introduce the expiry dates on Safaricom Bonga Points Loyalty Programme was a violation of the consumers’ economic interests thus unconstitutional, null and void.

D. Impact of judgment
From the judgment, it follows that once the Bonga Points were awarded to the customers, the same were considered their property and hence the notice of expiry was in violation of the right to consumer rights as enshrined under the Constitution of Kenya.