Court declares mobile phone numbers part of digital identity in landmark privacy ruling

The High Court in Milimani has delivered a landmark ruling recognizing mobile phone numbers as a core component of an individual’s digital identity, raising significant implications for privacy rights in Kenya.

In the case of Erastus Ngura Odhiambo vs State, the court found that the reassignment or recycling of inactive mobile phone numbers poses serious constitutional concerns, particularly under Article 31 which guarantees the right to privacy.

The petition was filed in June 2024 by inmate Erastus Ngura Odhiambo, who challenged the practice by mobile service providers of reallocating phone numbers after prolonged inactivity.

He argued that a mobile number is more than a communication tool, describing it as a gateway to sensitive personal data including banking, tax, and social information.

According to the petitioner, once such numbers are reassigned, third parties risk receiving confidential messages intended for the original owner, exposing individuals to potential data breaches.

He further told the court that prisoners are particularly affected because incarceration prevents them from actively using their mobile lines, leading to deactivation and eventual reassignment.

Odhiambo, who is serving a 20-year sentence, said he lost access to his phone number during incarceration, disrupting communication with his family, including his six children, and contributing to the collapse of his business.

He added that institutions such as banks, the Kenya Revenue Authority (KRA), and insurance companies continued sending sensitive information to his former number, which had since been assigned to another user.

He argued that this amounted to a violation of his right to privacy, as well as rights to equality, communication, and access to information.

The State opposed the petition, maintaining that while prisoners retain fundamental rights, those rights are subject to reasonable limitations.

Authorities relied on provisions of the Persons Deprived of Liberty Act, which allow restriction of certain rights for reasons including national security and public safety.

The Kenya Prisons Service told the court that mobile phones are classified as prohibited items in prisons due to risks such as criminal coordination, witness intimidation, and threats to national security.

Officials added that inmates are still able to communicate through supervised means including phone calls, letters, and scheduled visits.

The case raised key legal questions on whether digital identity is a constitutionally protected right, whether a registered mobile phone number forms part of that identity, and the extent to which prisoners retain their rights while in custody.

The petitioner maintained that no law expressly prohibits prisoners from owning mobile phones and argued that blanket restrictions are unconstitutional.

He further contended that limiting access to mobile numbers denies inmates their digital identity and affects their ability to access essential services in an increasingly digitized society.