A Nairobi High Court judge has ruled that a registered mobile phone number constitutes a digital identifier protected under the right to privacy, and ordered the government to stop the arbitrary recycling of deactivated numbers, a practice that has stripped prisoners of their digital identities while serving sentences.
Justice Lawrence Mugambi of the Milimani High Court delivered the judgment on 19 March 2026 in Constitutional Petition No. E290 of 2024, filed by two prisoners serving 20-year sentences for murder.
The Case: What the Prisoners Argued
The petition was filed by Erastus Ngura Odhiambo and a second petitioner who had been sentenced to death in October 2011 and later resentenced to 20 years. Both argued that once imprisoned, they became — in the first petitioner’s words — “digitally dead.”
The Kenya Prisons Service does not permit inmates to possess personal phones. As a result, their registered mobile numbers go inactive and are deactivated after 90 days of non-use under current regulations, then reassigned to new subscribers. Banks, schools, the Kenya Revenue Authority, insurance companies, and other institutions continue sending sensitive information to whoever holds the recycled number, with no notification to the original owner.
The first petitioner told the court he lost contact with his six children because their schools had his mobile number on file. His business collapsed. His financial and personal data — linked to accounts at Cooperative Bank, Kenya Commercial Bank, Equity Bank, KRA, and Nairobi Hospital — continued flowing to a stranger named Everline Ngarum, who had been assigned his old number 0722274548.
The petitioners sought several remedies, including a declaration that phone numbers form part of digital identity, an order allowing prisoners to use registered phones while incarcerated, and a finding that the blanket ban on prisoner phone use was unconstitutional.
What the Government Said
The State and the Kenya Prisons Service opposed the petition. They argued that prisoners retain rights under Article 51 of the Constitution, but those rights are subject to lawful limitations. Mobile phones, they said, pose a national security risk; potentially enabling terrorism recruitment, extortion, witness intimidation, and coordination of criminal activities from behind bars.
The government pointed to existing communication channels: supervised phone calls, letters, visitation rights, and quarterly family days provided under the Persons Deprived of Liberty Act. Under Section 8 of that Act, the right to communicate applies specifically at the point of first detention and upon transfer, not as a continuing, unrestricted right.
Deputy Chief State Counsel Kaumba S.O. submitted that the supervised communication framework is grounded in the Prisons Act, the Persons Deprived of Liberty Act, and the United Nations Standard Minimum Rules for the Treatment of Prisoners — making the restrictions lawful, reasonable, and proportionate.
What the Court Decided
Justice Mugambi ruled that the petition partially succeeded. The court made clear findings on three issues:
Issue 1: Does a Phone Number Constitute Digital Identity?
Yes. The court found that Kenya’s legislative framework, which ties SIM card registration to a person’s national ID, date of birth, physical address, and other personal data, makes a registered mobile number a digital identifier. It functions as the gateway to OTP authentication, mobile banking, e-Citizen services, and the Social Health Authority, among others.
The court held that losing this number exposes a person’s private financial and family information to third parties, creating a real and ongoing threat to the right to privacy under Article 31(c) and (d) of the Constitution.
Issue 2: Does Recycling Deactivated Numbers Violate Privacy?
Yes. The court found that current regulations — specifically Legal Notice 90 of 2025, which permits deactivation after 90 days of non-use — are silent on how reassignment happens. That silence hands unregulated discretion to network providers.
The court found this unacceptable:
“The provision is so mechanical that it fails to appreciate that non-use may in fact be justified, like in the case of prisoners serving a sentence. A person may also have left the country for treatment in a country that does not have roaming services. A student in a boarding school where the use of phones is prohibited could similarly suffer the same fate.”
The court ruled that no public notices are issued before deactivation, no opportunity is given to explain the reasons for non-use, and no mechanism exists for prisoners or their families to preserve a number during incarceration. These gaps, the court held, fail to meet the constitutional standards set by Articles 24 and 47.
Issue 3: Is Banning Prisoner Phone Use Unconstitutional?
No. The court declined to order that prisoners be given personal phones. It found that the restrictions in the Prisons Act and the Persons Deprived of Liberty Act are lawful limitations — not total denials — of the right to communicate. Supervised, scheduled communication remains available to inmates. The petitioners failed to mount a specific constitutional challenge to the statutory provisions themselves.
The court stated:
“The limitations imposed by legislation are measured, hence constitutional, proportionate and necessary to facilitate the enjoyment of the Bill of Rights by prisoners in a manner appropriate to their circumstances.”
The Orders Issued
| Order | Detail | Deadline |
|---|---|---|
| Declaration on phone numbers | Registered mobile numbers constitute digital identifiers protected under Article 31(c) and (d) | Immediate |
| Declaration on phone bans | Denying prisoners access to personal phones is a justifiable and proportionate limitation | Immediate |
| Mandatory order to Attorney General | Develop measures to stop arbitrary deactivation and reassignment of registered numbers, in collaboration with the Data Protection Commissioner, Communications Authority, and relevant ministry | 6 months |
| Prisoner-specific scheme | Attorney General and Kenya Prisons Service to gazette a regulatory scheme that preserves inmates’ digital identity during incarceration, including notifying mobile operators of a prisoner’s sentence so the number is not reassigned | 6 months |
| Alternative order | Kenya Prisons Service to gazette regulations allowing supervised activation or updating of registered numbers by prisoners, strictly under Section 8 of the Persons Deprived of Liberty Act | 6 months |
| Default order | If none of the above orders are implemented by midnight 19 September 2026, the reassignment and recycling of all previously registered deactivated numbers shall automatically cease | 19 September 2026 |
| Costs | None — public interest litigation | — |
The Legal Framework at the Centre of the Ruling
| Law | Relevant Provision |
|---|---|
| Constitution of Kenya, Article 31 | Right to privacy, including protection of personal communications and private affairs |
| Constitution of Kenya, Article 51 | Prisoners retain all Bill of Rights protections except where clearly incompatible with detention |
| Constitution of Kenya, Article 24 | Rights may only be limited by law, proportionately, and justifiably in a democratic society |
| Persons Deprived of Liberty Act, Section 4 | Lists permitted limitations on prisoner privacy |
| Persons Deprived of Liberty Act, Section 8 | Right to communicate applies at first detention and upon transfer |
| Prisons Act, Section 58 | Bans unauthorised communication with prisoners |
| Data Protection Act, 2019 | Defines personal data and identifiable natural persons |
| Kenya Information and Communications Act, Section 27A | Requires SIM registration against national ID and personal details |
| Legal Notice 90 of 2025, Regulation 17 | Permits deactivation after 90 days of non-use |
What This Means for You
This ruling affects far more than prisoners. If you have ever been hospitalised for an extended period, studied abroad, or lived in a location without network coverage for more than 90 days, your registered number was at risk of deactivation and reassignment — along with every bank alert, OTP, government notification, and personal message tied to it.
The court has now confirmed that this practice, as currently structured, threatens the constitutional right to privacy. The Attorney General has six months to fix the regulatory gap. If that deadline passes without action, the recycling of deactivated numbers stops entirely — by court order. For prisoners specifically, the ruling does not grant phone access, but it does require the government to put in place a mechanism that preserves their number until they complete their sentence. That is a meaningful protection for anyone whose financial, medical, or family records remain tied to a number they could not physically use.
