The High Court in Nairobi has declined to lift its order barring Safaricom from expiring Bonga Point loyalty program and non-merchandise Bonga redemption.

On October 28, 2022, Safaricom issued a public notice indicating that bonga redeemed by its customers will have expiry dates.

However, on November 22, 2024, Justice Chacha Mwita declared Safaricom’s Public Notice illegal, unconstitutional, null, and void.

Justice Mwita quashed the notice and prohibited them from effecting the notice.

The judge held that Bonga points once earned by customers become customers’ property; thus, Safaricom ceases to have control over them.

“In the circumstances, it would be inappropriate and possibly contrary to article 2(4) of the Constitution for this court, as the trial court, to grant a stay of its decision declaring the 1st respondent’s (Safaricom) notice constitutionally infirm,” said Justice Mwita.

Dr Magare Gikenyi filed a petition stopping Safaricom from taking away the bonga points and the non-merchandise bonga redemption.

Dr Gikenyi sued Safaricom, the Communication of Kenya (CAK), and the Attorney General (AG) and cited the Consumers Federation of Kenya (COFEK) and the Law Society of Kenya (LSK) as interested parties.

On April 9, 2025, Safaricom, through its application, asked Justice Mwita to stay the decision pending an appeal.

Safaricom said customers will utilise and deplete bonga points older than three years, and should the appeal succeed, the decree will be incapable of enforcement, and the effect would be irreversible.

The giant mobile network, through an affidavit filed by Cerere Kihoro, said that it has an arguable appeal, and unless a stay of execution is granted, the impugned notice will remain ineffective to its detriment since the bonga points held by subscribers would have been expended and it would be impossible to recover them.

Kihoro said that its customers would easily get their bonga points back in case the appeal did not succeed.

She said that the court failed to appreciate that it did not have jurisdiction to determine the petition owing to the doctrine of exhaustion.

She said the application was brought under rules 30 and 32 (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules).

The giant mobile network said that it delayed filing its application for staying Justice Mwita’s ruling because it had instructed new lawyers to represent them and also applied for typed copies of proceedings on December 6, 2024.

However, Dr Gikenyi said Safaricom had an inordinate delay in filing the application without reasonable excuse and that no substantial loss would be occasioned and no practical security may be furnished.

Dr Gikenyi said that it is surprising that Safaricom has changed its tune since, during the highlighting of submissions in the petition, its counsel then on record informed the court that it had abandoned the idea of the expiry of bonga as was initially planned.

He said Safaricom can still recover the loss from the customers.