1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

Katiba Institute challenged CAK and KRA notices requiring IMEI number disclosure, arguing it violated the right to privacy. The Court ruled that IMEI numbers, when linked to users, are personal data. The notices were deemed unconstitutional, unlawful, and void, their implementation quashed and prohibited.

Facts

The Katiba Institute, acting as a public interest litigant, filed a petition challenging public notices issued by the Communications Authority of Kenya (1st Respondent) and the Kenya Revenue Authority (2nd Respondent). These notices, issued on 24 October 2024 and 5 November 2024 respectively, mandated new requirements to enhance the integrity and tax compliance of mobile devices in Kenya, effective 1 January 2025.

Specifically, the petitioner challenged the requirement for:

• Local device assemblers to upload International Mobile Equipment Identity (IMEI) Numbers of each assembled device to the KRA Portal.
• Mobile phone importers to disclose IMEI Numbers in their import documents submitted to the KRA.
• Retailers and wholesalers to only distribute tax-compliant mobile devices.
• Mobile network operators to connect devices to their networks only after verifying tax compliance through a whitelist database provided by KRA, with provisions for grey-listing and blacklisting non-compliant devices.
• Passengers entering Kenya to declare their mobile devices on the F88 passenger declaration form, providing IMEI numbers for devices intended for use during their stay.

The petitioner argued that these notices violated fundamental rights and constitutional principles, specifically asserting that:

• The mandatory disclosure of IMEI numbers constitutes personal data and, when linked with other information, can identify individuals, thereby violating the right to privacy guaranteed under Article 31 of the Constitution.
• The creation of a master database with comprehensive access to personal IMEI numbers by government authorities poses a threat of mass surveillance.
• Whitelisting is unnecessary as existing blacklists for stolen phones are sufficient to achieve the stated goals.
• The notices usurped the mandate of Parliament and violated the principle of separation of powers, as they were not tabled for scrutiny as required by the Statutory Instruments Act.