The High Court has extended orders suspending the implementation of a public notice issued by the Communication Authority (CA) of Kenya that gave the Taxman the leeway to track mobile phones for tax compliance.
Justice Chacha Mwita said the orders will remain in place until the hearing of the petition which has been slated for February 21, 2025.
At the same time, the respondents and interested parties in the case were directed to file and serve their responses and written submissions ahead of the hearing date.
Mwita on November 22 suspended both CA and Kenya Revenue Authority notices on non-tax-compliant mobile devices.
The notice was posted on the CA website in October under the headline "Public notice on enhancing the integrity and tax compliance of the mobile devices in Kenya".
It stated that all local assemblers, importers, retailers and wholesalers as well as mobile network operators must upload the International Mobile Equipment Identity (IMEI) number of each assembled or imported mobile device to KRA portal to facilitate the tax compliance monitoring.
Katiba in its documents field before the Milimani law Courts said the notice was unconstitutional as it didn't follow the set out legislative procedures.
"The notice issued by CA and referred to as regulations were neither tabled in Parliament nor subjected to public participation as required by the constitution," Katiba Institute said.
The move they said went against article 35 of the Constitution which requires all relevant facts to be published prior to formulating important policies and announcing decisions impacting the public.
"The respondents were under a duty to proactively disclose the Data Protection Impact Assessment conducted on the collection of IMEI data," their documents read in part.
Based on these, they asked the court to suspend both notices.
"Without a data impact assessment, the risk of violating the right to privacy and other fundamental rights and freedoms remains unmitigated," they said .
They told the Judge that "contrary to the requirement that free and informed consent must be obtained prior to the collection of personal data, the respondents have resorted to duress by threatening to deregister any mobile phone device whose IMEI number is not disclosed."
Katiba informed the court that without sufficient safeguards and guardrails to the collection of IMEI numbers, there is a real risk that Kenya will easily be turned into a surveillance state.
‘"The lack of sufficient guardrails can be exploited to stifle dissent, monitor political opponents, or intimidate activists, creating a chilling effect on free speech and political engagement," they said.