First of Its Kind, Weak at the Base: Exhaustion and Constitutionalising Mobile Money Fraud in Rogo v Safaricom
MLR Issue 012 — A Fintech & Con Law Commentary
Kenya has no bespoke ombudsman for mobile money. A UK bank customer defrauded through a payment app has the Financial Ombudsman Service; a Kenyan M-Pesa customer defrauded through a SIM-swap has the Communications Authority’s KICA dispute-resolution mechanism on one side, the Central Bank’s National Payment Systems complaints route on the other, and, in between, millions of transactions a day moving through a platform no sector-specific tribunal was built for. Into that gap enters Paula Rogo (suing on her own behalf and on behalf of M-Pesa account holders who have been victims of fraud) v Safaricom PLC & another, handed down by Mong’are J at the Milimani Commercial and Tax Division on 27th July 2026. It is, so far as I can tell from the Kenya Law database, the first ruling to directly respond to the question of whether a mobile money fraud claim can be litigated as a constitutional matter, by engaging Articles 35, 46 and 47 directly in the Commercial Court, rather than being subjected first to the KICA’s statutory consumer dispute mechanism. Nothing cites it yet, and whatever this ruling says, it is saying it first and breaking new ground for Kenyan law, a novelty advocates must fully comprehend.
I went into this ruling expecting to find either a careful jurisdictional analysis or an unremarkable procedural reasoning, and I found neither. What I found instead is a ruling that arrives at an outcome which might well be the right answer: that a claim of this scale and ambition should not be marched through a tribunal created for individual consumer grievances. But I argue that while the first of its kind, the foundation upon which the court’s reasoning is built is weak, and the ruling gets there on one leg. Its entire premise is informed almost by a single paragraph which borrows credibility from a regulation the court fails to analyse closely, and then, in a move I keep going back to reread because I am not sure the court noticed it did this, removes from the case the one party whose word it had just relied on most heavily. For a decision that will likely be the first thing cited the next time someone sues a mobile network operator’s financial arm on constitutional grounds, I think that lapse is worth articulating clearly.
Background
Rogo pleaded that Kshs. 125,658 was stolen from her phone, but the suit was pleaded far beyond that sum. She sued as a representative of “M-Pesa account holders who have been victims of fraud” [1], seeking declarations that Safaricom PLC and M-Pesa Holding Company Limited had violated Article 35 (access to information), Article 46 (consumer rights) and Article 47 (fair administrative action), together with a mandatory order requiring the defendants to build new fraud-prevention systems, establish dedicated victim-reporting lines, and publish fraud statistics in their annual reports within 180 days [1]. The Central Bank of Kenya and the Communications Authority of Kenya were joined as interested parties.
The defendants and CBK raised a preliminary objection: the Kenya Information and Communications Act’s Dispute Resolution Regulations set up a mechanism through the Communications Authority, and the Plaintiff had come to court without exhausting it [3]. CAK and CBK separately applied to be struck out as interested parties [2], [4]. All three applications turned, one way or another, on the same underlying question the ruling had to answer first: is this a consumer complaint for a sector tribunal, or a constitutional claim the Commercial Court may hear directly?
The constitutional escape route, and what it took to open it
The court’s answer, in substance, is that the claim is both a consumer dispute and a constitutional one; and that its constitutional character is what frees it from the exhaustion requirement. “The most compelling argument,” the ruling holds, “is that the Plaintiff’s claim is not merely a consumer complaint but a constitutional challenge alleging systemic violations of rights by an allegedly dominant market player and this is an example of a matter that this court should hear and determine” [8]. I want to be honest about what that sentence does for this ruling: it is the pivot upon which the entire ruling turns. Everything after it, including the court’s refusal to strike out the suit, its retention of CBK, and its striking off CAK, follows from having decided, at the threshold, that constitutional character supersedes sectoral process.
I do not quarrel with the impulse. What I cannot get past is what the court relies on to get there, at exactly the moment a first-impression ruling most needs a solid foundation to anchor it.
I start with the regulation the court analyses. The defendants relied on Regulation 3(a) of the KICA Dispute Resolution Regulations, which provides that “the Commission shall have power to resolve disputes between a consumer and a service provider” [6]. Noteworthy that this is a mandatory provision about the regulator’s jurisdiction. The court’s answer instead focuses on Regulation 4(1), which provides that “a party to a dispute may, within sixty days of the occurrence of a dispute, notify the Commission” [6]. That is permissive language about a complainant’s choice of whether and when to trigger the mechanism. “Regulation 4(1) uses ‘may’ for the initiation of the dispute process which makes this process optional,” the ruling reasons, “and if Parliament intended to make the process mandatory, it would have used the word ‘shall’” [7]. Fine, as far as it goes, but the court does not touch Regulation 3(a) at all, which is the provision the defendants raised to argue that constitutional pleading cannot manoeuvre around a statutory forum Parliament made mandatory for the regulator itself to operate. I kept waiting for the ruling to turn to that argument, but it never does.
Then there is the piece I find harder to ignore. Having decided that the claim’s constitutional character matters, the court still needed a reason the KICA mechanism could not proceed first or alongside it. From the ruling, that reason, as it turns out to be, is CAK’s own submission that its “mandate... is accordingly restricted to consumers of communication services provided by the 1st Defendant and not financial services provided by the 2nd Defendant, which falls squarely under the 1st Interested Party [CBK]” [8]. “If the CAK itself says it cannot resolve the dispute,” the court concludes, “it would be unjust to force the Plaintiff to exhaust a remedy that is effectively unavailable” [8]. Read that again slowly, and I think you will see what I saw: CAK refuses that it possesses jurisdiction over the financial services arm of M-Pesa. It said nothing about the telecommunications aspect, yet mobile money fraudsters in Kenya (now dubbed the “Mulot sharp boys”) often go through that layer: SIM-swaps, unauthorised porting, exploitation of USSD and SMS channels. None of that stops being a telecommunications problem just because the harm that follows is monetary. Crucially, nowhere does the ruling separate which of Rogo’s allegations belong to the telecom side and which belong to the payments side, even though the two defendants, a telecommunications licensee and a separately incorporated financial holding company, belong on either side of exactly that line.
I could live with the findings if CAK’s account of its own jurisdiction were still there to be tested. It is not. Six paragraphs later, the court grants CAK’s own application to be struck out, holding that “the Plaint does not allege any wrongdoing by CAK... no negligence or breach of duty is attributed to it... [and] the court can pass an effective decree in CAK’s absence” [14]. So the regulator whose word the court relies on as the pivotal reason for permitting this claim to bypass its own tribunal is, by the end of the very same ruling, no longer part of the proceedings to have that word tested. Curious right? I do not think the court set out to do this. I think it simply did not notice that the party it was relying on most and the party it was removing were the same party, in the same ruling, a few pages apart.
Why I think the wobble fractures the court’s reasoning
In an ordinary two-party exhaustion fight, I would call this a footnote and move on. I cannot do that here, because this is not an ordinary two-party dispute. Instead, it is the novel ruling that sets the doctrinal basis for every future claimant against Kenya’s dominant mobile money platform, or any comparable e-money operator, who wants to manoeuvre around KICA’s tribunal by pleading the Constitution. Whoever files the next one of these will cite paragraph 8 for the argument that constitutional framing defeats sectoral exhaustion, and they will not need to re-litigate whether that proposition was ever well-founded, because by then it will just be the law as this court left it. A precedent inherits the strength of its reasoning and not merely its outcome. If the reasoning here is wobbly, what gets passed down is thin too, and Kenya, still without a dedicated e-money ombudsman, will be living with that reality for a while.
In my reading of this ruling, what frustrates me most is that a more concrete path to the same result existed right there, unutilised. The relief Rogo asks for, being a 180-day mandatory order compelling systemic redesign of fraud-prevention architecture, new reporting infrastructure, published fraud disclosures [1], is plainly beyond anything a KICA consumer-dispute Tribunal could ever grant. Exhaustion doctrine, including the Court of Appeal authority the ruling itself cites in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [5], excuses recourse to a statutory mechanism where that mechanism is structurally incapable of delivering the remedy sought. This position has been cemented by the Supreme Court ratio in Abidha Nicholus, which I analysed earlier. That argument needed no reliance on CAK’s contested self-description, no unanswered regulation, nothing left unresolved once the suit was over. It existed in the pleadings the whole time and I do not know why the court did not explore it.
Conclusion
Rogo v Safaricom will probably be remembered as the ruling that let a mobile money fraud claim proceed in the Commercial Court on constitutional bases, ahead of and outside Kenya’s sector-specific dispute machinery. For an economy this dependent on a single mobile money rail, with nothing built to bridge the gap between CAK and CBK, that may turn out to be the right place to land. But I keep going back to how the ruling gets there: misreading the defendants’ textual argument, and building its most important finding on submission from a regulator it discharges from the case in the same breath. First-impression rulings set the pace for everyone who litigates after them. This one, I think, deserved a more robust foundation built to take the jurisprudential weight it is about to carry.
Gody Mwango is an advocate at Mwango Law Advocates, Mombasa, specialising in constitutional litigation, judicial review, and commercial law. He is the founder and managing editor of Mwango Law Review.