Blow as Court Bars Kenya’s Telcos From Automatic Recycling of Inactive Mobile Numbers

Kenya’s telecommunications industry has been handed a stunning legal setback after the High Court declared that mobile phone numbers constitute protected digital identities, delivering a potentially costly blow to the long-standing industry practice of automatically recycling and reassigning inactive SIM cards to new subscribers.

Justice Lawrence Mugambi, ruling last Thursday on Constitutional Petition No. E290 of 2024, declared that a registered mobile phone number is a digital identifier linking directly to an individual’s private affairs and is fully protected under Articles 31(c) and (d) of the Constitution of Kenya, which safeguard the right to privacy. The judgment, delivered virtually, marks the most far-reaching judicial intervention into the country’s telecommunications sector in a generation.

The petition was filed in June 2024 by Erastus Ngura Odhiambo, an inmate serving a 20-year prison sentence, and a co-petitioner. Odhiambo’s plight encapsulated the hazards that SIM recycling poses in an era when a phone number is no longer merely a communication tool but the skeleton key to an individual’s entire digital existence. During his incarceration, his dormant mobile line was recycled and reassigned by a service provider, cutting him off from family communications, mobile banking access and other critical personal affairs, all without his knowledge or consent.

Justice Mugambi found that the risks were not theoretical. When a recycled number falls into new hands, the incoming subscriber can receive M-Pesa transfers intended for the original owner, intercept one-time passwords for bank accounts, get added to family or work WhatsApp groups, and harvest verification messages for email accounts, government portals and social media platforms. The consequences, the court noted, range from financial loss to identity theft and the unauthorised disclosure of the most intimate personal data.

The ruling takes direct aim at Legal Notice 90 of 2025, which had permitted telcos to deactivate numbers after defined periods of non-use. The court declared the notice unreasonable and arbitrary for its failure to account for subscribers who are inactive through no fault of their own, citing prisoners, students in restricted environments and Kenyans living abroad in non-roaming zones as examples of those unlawfully disadvantaged by blanket inactivity thresholds.

Operators are now prohibited from reassigning deactivated numbers except under strict new conditions: they must obtain the previous subscriber’s informed and verifiable consent, or issue a public notice and wait a reasonable period after failing to locate the original owner, and must in all cases erect hard technical barriers preventing any new subscriber from accessing the previous owner’s linked personal data. Justice Mugambi issued a blunt warning: if the government fails to implement the required regulatory framework by midnight on September 19, 2026, all reassignment and recycling of deactivated numbers will automatically and unconditionally stop.

The Attorney General has been directed to work with the Communication Authority of Kenya, the Office of the Data Protection Commissioner, the Kenya Prisons Service and the relevant ministry to formulate the new regulatory scheme within six months. For prisoners specifically, the court ordered that registered mobile numbers be preserved throughout the period of incarceration, with the Prisons Service required to establish supervised access mechanisms allowing inmates to activate or update their numbers when necessary, in line with the Persons Deprived of Liberty Act.

COST SHOCK FOR OPERATORS

For the telecommunications industry, the judgment is a commercial earthquake. Telcos have historically relied on number recycling to manage the finite pool of mobile numbers allocated by the regulator, ensuring continuous availability for new subscribers. With Kenya hosting more than 76 million active SIM subscriptions as of the middle of last year, and Safaricom alone commanding a 65 per cent market share with nearly 50 million subscribers, the scale of the dormant line problem is immense. Inactive SIM cards continue to occupy routing databases, signalling systems and other network infrastructure, generating costs without generating a single shilling of revenue.

Neither Safaricom nor Airtel Kenya had responded to inquiries on the precise per-line cost of maintaining dormant numbers by the time of publication, a silence that underscores just how sensitive the financial implications are. Industry observers, however, have said that as Kenya’s subscriber base continues to grow and the ruling forces operators to retain millions of inactive lines for extended or indefinite periods, operational overheads will surge at the worst possible time. The telcos are already navigating pressure from falling voice revenues, mounting competition in data and digital financial services, and the rising infrastructure costs of 5G network rollouts.

The judgment will also force operators to invest heavily in consent management systems, public notification frameworks and the technical safeguards the court has ordered to prevent data leakage from recycled numbers. Each of these represents a fresh and unbudgeted expense. Legal and compliance teams will need to be strengthened, and new subscriber lifecycle management systems will need to be built, all while telcos scramble to meet the September deadline.

SAFARICOM’S DAIMA LIFELINE UNDER SCRUTINY

Safaricom had already anticipated part of the problem through its Daima Service, launched in 2022, which allows customers to pay to keep inactive lines alive without topping up. Under the scheme, subscribers pay Sh200 to retain a line for six months, Sh500 for a year and Sh1,000 for two years, effectively transferring part of the maintenance cost burden from operator to user. The service specifically targets customers who may be temporarily inactive, including those living abroad, in military or police training, managing multiple lines, or preserving numbers linked to vehicle tracking or financial accounts.

The court’s ruling now compels Safaricom and its rivals to extend comparable retention frameworks far more broadly, including to users who have not opted into any paid service but who retain constitutional rights over their registered numbers. That creates a structurally lopsided situation: the operator bears the ongoing cost of maintaining dormant lines while collecting no corresponding revenue from the inactive subscriber. Unless regulators introduce specific pricing allowances or the operators push new fee structures through the Communications Authority, the mismatch could prove a significant drag on margins.

NUMBERING PLAN AT RISK

Beyond the direct financial pressure, the ruling raises alarm over the long-term viability of Kenya’s numbering plan. Like most countries, Kenya operates a finite number pool, and it was precisely the exhaustion of traditional 07xx prefixes that forced the Communications Authority to issue new 01xx prefixes to Safaricom and Airtel starting in 2020. If operators are now barred from recycling dormant numbers back into circulation without the original subscriber’s consent, the pipeline of available numbers will narrow at precisely the moment demand from a still-growing subscriber base remains robust.

Industry experts warn that without either an expansion of number allocations by the regulator or the introduction of alternative identifier systems, the market could face a numbering shortage in the medium term. The Communications Authority will now be under pressure to accelerate planning on both fronts, even as it works to meet the court’s September deadline for a new consent and reassignment framework.

YOUR NUMBER IS YOUR LIFE

What has made the ruling so resonant with ordinary Kenyans is that it codifies in constitutional law something millions already experience as lived reality: that a phone number is no longer merely a way to make calls. It is the linchpin of the entire digital economy. A registered Safaricom or Airtel line is an individual’s gateway to M-Pesa, mobile banking, KRA tax filings, Huduma Centre services, government disbursements, school fee payments, healthcare platforms, NTSA transactions and social media identity verification. To lose that number, involuntarily and silently, is to lose access to all of those services simultaneously.

Kenyans on social media platforms erupted in support of the ruling, sharing stories of numbers sold by telcos after the death of a loved one, lines of two decades quietly reassigned while the original owner was abroad, and newly acquired numbers that arrived pre-loaded with the financial histories, loan obligations and message inboxes of strangers. One widely circulated account described a woman who tried to call her late mother’s number months after the burial, only to discover that a stranger had been assigned the line and, through it, had already accessed the deceased’s digital footprints.

The ruling intersects with a broader push to tighten the link between physical and digital identity in Kenya, following the recent nationwide SIM registration exercise that made the National Identity Card a mandatory anchor for all mobile line registrations. In that context, Justice Mugambi’s conclusion that a mobile number is by definition personal data under the Data Protection Act carries particular force: the state itself demanded that Kenyans tie their identities to their phone numbers, and the court has now ruled that the state and the private sector alike must protect that linkage.

The Communications Authority, whose Legal Notice 90 of 2025 has now been declared unreasonable, is expected to issue a formal response in the coming days. Safaricom and Airtel Kenya had not commented by the time of going to press.