The American and English style of civil litigation, class-action lawsuits, is gaining momentum in Kenya, with giant corporations becoming the main targets.
Persons and civil organisations aggrieved by operations and services of a company or state agency are preferring class lawsuits to individual claims. In the past 10 years, at least 11 high-profile class-action suits have been filed at the High Court over the enforcement of human rights, protection of consumer rights and demand for a clean environment.
The class suits or representative action lawsuits have also thrown the Judiciary in uncharted waters as this type of litigation was not popular in Kenya before the 2010 Constitution.
Individuals and consumers of different goods and services are using legal device to fight big companies and government entities over prices, sub-standard goods/services, processing of personal data or questioning how services are rendered.
Kenya’s big companies in telecom, finance, agriculture, manufacturing and utility industries are some of the entities battling against class-action suits, thanks to Article 22 of the Constitution. Legal pundits say the rise of class-action lawsuits demonstrates that Kenyans have become more sensitive to and aware of their rights.
“People have become more conscious and decided to exploit the option of class-action suit where there is a common problem. The device is grounded in Article 22 of the Constitution, which talks about enforcement of the Bill of Rights. It is not an invention because it is provided for in law,” says lawyer Adrian Kamotho.
He adds that the Constitution gives every person the right to institute court proceedings claiming a right or fundamental freedom has been denied, violated or infringed.
Hence, Kenyans are invoking Article 22 (2)(b), which provides that such action may be instituted by “a person acting as a member of, or in the interest of, a group or class of persons”.
A class-action suit is legal proceedings in which an individual or a group of people with a common complaint lodge a legal challenge in court against an organisation or an individual on behalf of a larger group or "class" of people. If successful, all consumers aggrieved stand to get compensated.
“There are instances where courts in their own motion let the window open, if an issue affects many people, and grant leave for any other person who may wish to join,” says lawyer Kamotho. Petitioners are usually asked to advertise the suit. According to the lawyer, this reduces multiplicity of similar cases and makes administration of justice efficient for the claims to be litigated as group proceedings rather than by separate individual proceedings.
Among giant corporations sued in a class suit in Kenya is communication firm Safaricom, the Central Bank of Kenya, the Kenya Deposit Insurance Corporation, social media firm Meta (Facebook) and Kenya Power.
Others are global technology company Google, Scottish multinational tea firm James Finlay, the Communication Authority of Kenya and financial lenders Charter House Bank and Commercial Bank of Africa.
Also in the list is the Metal Refinery (EPZ) Limited, Penguin Paper and Book Company jointly with the Ministry of Environment, Water and Natural Resources, the Ministry of Health, the National Environment Management Authority and the Export Processing Zones Authority.
Mr Kamotho says a class-action suit raises credibility and stature of the claim and is affordable because the costs are shared by the litigants.
“Psychologically, it has an effect, it shows there is a problem. Because it is not only one person complaining about an issue,” says the lawyer.
“It is also a strategy because you are able to bring together issues and clothe them in a way that projects a wider effect for the society. By being class suit is basically claim(s) brought by a person or group of plaintiffs on behalf of a larger group of people who have the same claim.”
The latest class-action action suit was filed by the African Centre for Corrective and Preventive Action, led by Mr James Mwangi, together with 31 internet users, against Google. The High Court has since allowed millions of Kenyan internet users to join the suit. The lawsuit alleges privacy violations by Google through illegal tracking of Android users and collecting personal information such as face photos of internet consumers.
The search firm is also being accused of breaching Kenya’s data protection laws by illegally invading the privacy of users and collecting their biometric information like photos to train their facial recognition technology, voices, videos and messages.
In the finance sector, the High Court last week opened doors to former depositors of Charterhouse Bank to pursue their money from the collapsed lender. Justice Dorah Chepkwony directed the petitioner, former Kiambu Governor William Kabogo, to publicise the case in two local dailies for any depositors of the lender, which was placed under statutory management in 2006 and later closed over claims of malpractices, including tax evasion and money laundering, to join the case.
He filed the case in 2022 seeking to secure his deposits, arguing he and other depositors were on the verge of losing deposits and assets after Kenya Deposit Insurance Corporation started liquidating the lender.
In another case, the Consumer Federation of Kenya (Cofek) sued the Commercial Bank of Africa, the Central bank of Kenya and Safaricom in 2016 over mobile loan rates. They alleged that CBA was circumventing the law by using the term 'facilitation fees' instead of interest rates on M-shwari loan subscribers.
While CBA was accused of violating the provisions of Section 33 (2) of the Banking Act, which prohibits any person who was giving loans from charging interest at rates in excess of what is prescribed by law, CBK was accused of failing to ensure compliance with the law. The suit was, however, thrown out by Justice Fred Ochieng after Cofek failed to prove any of the allegations.
Because the petition had been filed for the intention of seeking protection to consumers whom the petitioner considered to be financially weak and vulnerable, the judge ordered each party to bear its costs.
So far, the most successful high profile class-action suit was filed by Ms Phyllis Omido and the Centre for Justice Governance and Environmental Action over lead poisoning. They sued on behalf of the residents of Owino-Uhuru Village in Mikindani, Changamwe, Mombasa, in 2016 against Metal Refinery (EPZ).
They alleged lead contamination and poisoning resulting from Metal Refinery recycling of lead-acid batteries had affected 3,000 slum dwellers. On July 16, 2020, Environment and Land Court judge Anne Omollo ruled in favour of the community and ordered the government and Penguin Paper and Book Company to pay the victims Sh1.3 billion in damages. They were also ordered to clean-up the soil, water and remove any wastes deposited within the settlement by Metal Refinery.
The orders were directed to the EPZ Penguin Paper and Book Company, the Ministry of Environment, Water and Natural Resources, the Ministry of Health, the National Environment Management Authority and the Export Processing Zones Authority.
Safaricom and the Communication Authority are jointly battling against two class-action suits filed in October and November 2022 by individuals.
The first one was filed by businessman Abdi Zeila over SIM-swap fraud that has seen scammers drain millions of shillings from mobile phone subscribers’ bank accounts. He sued the telcos operator and the regulator for alleged fraud, and was allowed by court to invite other victims through the class-action suit to press for Safaricom to be cited for negligence and liable for lost cash.
The second suit was filed by two senior advocates, Wilfred Nderitu and Charles Kanjama, accusing Safaricom of forcing subscribers to sign a data privacy statement that allows the firm to collect bank account details. They said their SIM cards were suspended on October 15 and they were forced to re-register to enjoy Safaricom services and products.
James Finlay (Kenya) was also sued in a Scottish court by 1,300 Kenyan plantation workers under a class action in February 2019. The workers claimed they suffered serious neck and back injuries due to the poor working conditions on the company’s tea farms in Kericho County.
The case was first filed by seven tea pickers before hundreds of others joined. They demand compensation.
In the class-action lawsuit, Meta is accused of letting violent and hateful posts from Ethiopia flourish on Facebook, thus escalating the civil war in the country. The petitioners, together with Katiba Institute, want Meta held accountable for contributing to loss of lives, displacement of families, vilification of individuals and destruction of communities.
