- Mon - Fri: 08:00 - 21:30
The matter in Constitutional Petition No. E290 of 2024-Erastus Ngura Odhiambo vs State Law, didnot begin as a policy debate. It began with something far more ordinary. It began with absence. Two petitioners, both serving custodial sentences, lost access to their mobile phones upon incarceration.
That part is uncontroversial; the law permits structured limitations on communication for persons deprived of liberty. What followed is where the issue takes shape.
After a 90-day period of inactivity, under current regulations, their mobile numbers were deactivated and reassigned. Again, standard practice. But the numbers were not dormant in any meaningful sense.
Two petitioners, both incarcerated, lost access to their mobile numbers, a limitation consistent with the law.
After 90 days of inactivity, the numbers were deactivated and reassigned. Standard process. But the numbers were not truly dormant. They remained linked to banking alerts, tax systems, schools, healthcare, and business records. When reassigned, those systems did not reset.
The data kept moving, but now it was moving to someone else. One petitioner continued to have financial and personal messages sent to a number he no longer controlled. Another found his number, still tied to multiple institutions, now in the hands of a third party receiving fragments of his digital life.
What makes the case particularly striking is not that the system failed. It is that the system worked exactly as designed.
The Court approached the matter with precision, distilling it into four key questions
The first finding is where the legal ground shifted. The court held that a registered mobile number is a digital identifier, one that enables a person to be identified directly or indirectly and through which personal data is accessed and transmitted.
That recognition reflects operational reality.
In Kenya today, a phone number is not just a communication channel. It is an authentication tool used for OTPs, financial transactions, government services, and identity verification. Remove it, and access collapses. Transfer it, and access may follow.
The legal framework examined in the petition permits deactivation after 90 days of inactivity.
What is less clear is everything that follows.
There is no structured legal process governing reassignment. No obligation to notify the original user. No requirement to interrogate why inactivity occurred. There are no safeguards to prevent residual data from reaching the next holder of that number.
The Court describes the process as a “mechanical” system that is efficient but indifferent. And that indifference is where constitutional risk emerges.
The judgment in the petition does not seek to dismantle telecom operations. Rather, it reallocates responsibility. At its core, the Court is confronting a mismatch: systems designed for efficiency are now carrying identity, but without the safeguards identity requires.
By affirming that a phone number is part of an individual’s digital identity, the Court effectively extends constitutional protection into telecom practice. Privacy, in this context, becomes less about secrecy and more about control.
Control over where your data flows. Control over who receives it. Control over whether that connection is severed cleanly. The current framework does not provide that control. It assumes inactivity equals abandonment, and reassignment is harmless. It also assumes that systems update instantly.
And this is where the judgment becomes particularly instructive. The Constitution protects not only against actual violations but also against threats to rights. A system that predictably allows personal data to reach unintended recipients is unconstitutional, even without a breach.
The risk itself is sufficient.
The case becomes more nuanced when viewed through incarceration.
In the petition, the Court is clear that limiting prisoner access to mobile phones is lawful, proportionate, and justified within the framework of Article 24. But it draws a distinction that reframes the issue. Limitation of access should not translate into erasure of identity. A prisoner may be denied use of a phone.
But should they lose the digital identity attached to their number?
The current system collapses these into one outcome. The Court suggests that collapse is neither inevitable nor constitutionally sound.
It would be analytically limiting to treat the petiton as a case confined to the peculiar circumstances of incarceration. It is not.
The principles articulated by the Court have far wider application. Any period of involuntary or legitimate inactivity, whether due to hospitalization, international travel, financial constraints, or ordinary oversight, can trigger the same regulatory sequence, which is either deactivation, reassignment, or uninterrupted data transmission.
What the decision exposes, therefore, is not an isolated failure, but a systemic vulnerability embedded within the current telecommunications framework.
A reassigned number can continue receiving
Crucially, the original subscriber may remain completely oblivious to the ongoing transmission of their data to a third party. The system does not notify you, it does not pause your data, and it does not ask for confirmation. It simply moves on.
The Court’s response is measured, but it is far from modest. It does not prohibit the reassignment of mobile numbers. It does something more consequential; it subjects the practice to constitutional discipline.
Within six months, the State is required to design a framework that introduces the following
This is not procedural housekeeping but recalibration of responsibility.
The burden shifts deliberately away from the individual, who has historically been expected to remain perpetually “active” to preserve their number, and toward the system, which must now justify how it manages identity-linked infrastructure.
We have constructed a digital ecosystem where a single phone number unlocks access to money, to services, and to identity itself. This judgment clarifies the consequences. A phone number is no longer incidental but infrastructural.
And if that infrastructure can be reassigned without friction, without notice, and without safeguards, then the issue is no longer whether the system functions efficiently.
It is whether it preserves ownership of identity in the process
Contact us at mogendiadvocate@outlook.com