Two recent decisions from the Small Claims Court and the High Court have found Safaricom liable for funds lost in M-Pesa/M-Shwari accounts once the same was reported to the company.
The most recent case related to an individual whose phone got lost and later KES 751,680 was withdrawn from his mobile money accounts over several days. He reported the same to the company, but for one reason or another, the SIM card was not disabled on time. The High Court on appeal, upheld the decision of the SC court which held that the company owed him a duty of care to act with diligence, and found the company liable for the loss of 452,869, and the customer responsible for the balance of 292,812.
The case is likely to have implications on how telcos manage losses from SIM Swap / mobile money fraud. They will need to act swiftly when such reports are made and take adequate measures to enhance the security of SIMs, or otherwise face an avalanche of lawsuits seeking damages for lost funds. From the decision, it is not enough to blame the customer for being negligent or for telcos to put in clauses in agreements/terms and conditions to avoid responsibility. Anyway, it will be interesting to see whether the company appeals the decision, yet again.
Regards,
Victor Kapiyo
Partner | Lawmark Partners LLP
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“Your attitude, not your aptitude, will determine your altitude” Zig Ziglar