Geonet Communications Limited v Safaricom Plc & 2 others

4. Aggrieved by that determination, Elige Communications Limited (the 2nd respondent) on 23rd August, 2018 led Appeal No. 3 of 2018 before the Communications and Multimedia Appeals Tribunal (CAMAT). 5. That on 11th February 2022, CAMAT delivered its judgment, upholding the CAK’s nding that Geonet was guilty of SIM boxing due to a lack of international numbers in its Call Data Records. 6. Aggrieved by that decision, Geonet on 1st March 2022 appealed the tribunal’s decision to the High Court Commercial and Tax Division via Appeal No. E023 of 2022 as consolidated with E028 of 2022. 7. On 17th March 2023 D.S. Majanja, J. delivered a judgment dismissing Geonet’s appeal with costs. 8. Dissatised with the judgement dated 17th March 2023, Geonet led an application dated 22nd March, 2023 seeking a review and setting aside of Judge Majanja’s dismissal judgment. 9. On 15th September 2023 Majanja, J. delivered a ruling dismissing Geonet’s review application with costs holding that Geonet had not made out a case for review of the judgment dated 17th March 2023. 10. Still aggrieved, Geonet subsequently led the current Notice of Appeal dated 20th September 2023 and the Record of Appeal dated 5th October 2023 to challenge the ruling dated 15th September 2023. 11. Safaricom avers that under Section 102F (2) of the Kenya Information and Communications Act (KICA), aggrieved parties may appeal CAK decisions to CAMAT. And that Section 102G (1) then permits a subsequent appeal from CAMAT to the High Court and that pursuant to Section 102G (3) of KICA, any decision made by the High Court under this framework is completely nal. 12. It is contended that KICA does not grant a right of appeal to the Court of Appeal against a Section 102G High Court decision and that a right of appeal must be explicitly conferred by written statute and cannot be inferred or implied. It is contended that because the law bars further escalation, Geonet’s Notice of Appeal dated 20th September 2023 and Record of Appeal dated 5th October 2023 are legally incompetent and must be struck out. 13. Geonet opposed the application by way of a replying adavit sworn on 19th October 2023, by Hassan Katetei Mdachi, a director of the appellant company. Geonet’s case was that the statutory provisions including Article 164(3) of the Constitution and the Civil Procedure Rules establish a clear right of appeal against D.S. Majanja, J. High Court ruling dated 15th September 2023 which concerned an application for review. 14. It is averred that it served its Notice of Appeal on 22nd September 2023, followed by the Memorandum of Appeal on 6th October 2023, and submissions on 13th October 2023, and that none of the respondents have led a notice of address for service as required by Rule 81 of the Court of Appeal Rules, 2022, meaning Safaricom PLC failed to comply with proper procedure before ling its motion. 15. On behalf of Safaricom/applicant it was submitted that Geonet had no statutory right of appeal as Section 102G (3) of the KICA states that the High Court’s decision on an appeal from CAMAT is nal, it was contended that jurisdiction cannot be inferred as the right to appeal is a creation of statute and cannot be assumed, implied, or expanded via judicial craft. Reliance was placed in Samuel Kamau Macharia & Another -vs- Kenya Commercial Bank Limited & 2 Others (2012) eKLR for the proposition that appellate jurisdiction is strictly delimited by its legal source and that a court cannot assume it where none is granted. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1913/eng@2026-09-25 2

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16. Further it was submitted that KICA intentionally sets the High Court as the nal arbiter to avoid endless litigation. Reliance was placed in Sta Pension Fund & Kenya Commercial Bank Sta Retirement (DC) Scheme 2006 & another -vs- Ann Wangui Ngugi & 524 others [2018] eKLR. 17. It was submitted that Rule 2 of the Court of Appeal Rules, 2022 does not apply here as it only allows the Court of Appeal to review its own decisions, not those of the High Court. It was contended that the appellant is attempting to take an unauthorized third bite at the cherry and that courts cannot expand their own jurisdiction through judicial innovation. Reliance was placed in Karanja -vs- Ndirangu & another [2021] KECA 57 (KLR) to emphasize that litigation must have a denitive end, even if the outcome is unfavourable to an applicant. 18. We are urged to allow the application with costs. 19. In opposition Geonet submitted that the appeal is legally competent and should not be dismissed for the reasons that Article 164(3) of the Constitution explicitly grants the Court of Appeal the jurisdiction to hear appeals directly from the High Court. 20. Further it is contended that Rule 2 of the Court of Appeal Rules, 2022 includes matters of review under the denition of a superior court’s appellate jurisdiction and that Order 43 Rule 1 of the Civil Procedure Rules, 2010 read together with Section 75(1)(h) of the Civil Procedure Act expressly states that an appeal lies as of right from High Court orders concerning applications for review under Order 45 Rule 3 of the Civil Procedure Rules. 21. Finally, we are urged to dismiss the application with costs as the appeal is competent. 22. We have considered the application as well as the submission led. Section 102G (3) of the KICA provides as follows; “ (1) Any person aggrieved by a decision or order of the Tribunal may, within thirty days of such decision or order, appeal against such decision or order to the High Court. 2) No decision or order of the Tribunal shall be enforced until the time for lodging an appeal has expired or, where the appeal has been commenced until the appeal has been determined. 3) The decision of the High Court on any appeal under this section shall be nal.” (emphasis added). 23. This is a journey we have traveled before and this Court has explicitly expressed itself before on this issue. In Communications Authority of Kenya -vs- Okiya Omtata Okoiti & 8 others eKLR the Court concluded that Section 102G(3) creates an absolute statutory bar to third-tier appeals explicitly ousting the Court of Appeal’s jurisdiction for further appeals. The ruling arms that the statutory, truncated dispute mechanism for telecommunications cases prevents third-tier appeals to the Court of Appeal such as the one led by Geonet. 24. The Court of Appeal’s jurisdiction is set out in Article 164(3) of the Constitution, which provides that the Court hears appeals rstly, from the High Court; and secondly, from any other court or tribunal as prescribed by an Act of Parliament. This jurisdiction is also reiterated in section 3(1) of the Appellate Jurisdiction Act, which provides that the Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and any other Court or Tribunal prescribed by an Act of Parliament, in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1913/eng@2026-09-25 3

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cases in which an appeal lies to the Court of Appeal under law. The Constitution,therefore, envisages a situation where a statute may prescribe the jurisdiction of the Court of Appeal. 25. In addition the issue raised as to whether we can strike out the Notice of Appeal and Record of Appeal in light of the provisions of Section 102G(3) is not a mere procedural objection, but is a substantive question that we must answer, in light of the decision by the Supreme Court of Kenya in Samuel Macharia & another - vs- Kenya Commercial Bank Limited & 2 others, [2012] KESC 8 (KLR) that the question of a Court’s jurisdiction is not a mere procedural technicality, and that a court cannot assume jurisdiction where it has none. The Supreme Court in this regard opined as follows: “ 68. 26. A Court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the applicant in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope dened by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.” On the argument that a universal right of appeal is conferred by the provisions of Article 164(3) of the Constitution , and that a limitation of such a right hinders the right of access to justice, the Supreme Court of Kenya explained as follows in Nyutu Agrovet Limited -vs- Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch [2019] KESC 11 (KLR): “ 33. What exactly does the term “jurisdiction” mean? In Republic -vs- Karisa Chengo & 2 others SC Petition No 5 of 2015; 2017 eKLR, we dened jurisdiction as the “the Court’s power to entertain, hear and determine a dispute before it.” Also, “the sphere of the courts operations.” Is jurisdiction therefore synonymous with a right of appeal? In other words, does article 164(3) grant a litigant a right of appeal to the Court of Appeal? Nyutu urges that article 164(3) indeed grants such a right of appeal. We disagree. As urged by Airtel, this provision does not confer a right of appeal to any litigant. It only particularises the connes of the powers of the Court of Appeal by delimiting the extent to which a litigant can approach it. In this case, the appellate court only has powers to hear matters arising from the High Court or any other dened Court or Tribunal. There is thus no direct access to the Court of Appeal by all and sundry. As such, article 164(3) denes the extent of the powers of the Court of Appeal but does not grant a litigant an unfettered access to the Court of Appeal.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1913/eng@2026-09-25 4

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27. The Supreme Court emphasized that a right of appeal is not automatic but a creation of the law, and is expressly conferred by the Constitution or a statute. It is notable in this respect that section 3(1) of the Appellate Jurisdiction Act not only delineates this Court’s jurisdiction, but also states when a right of appeal lies to the Court. In the instant application, Section 75(1)(h) of the Civil Procedure Act expressly states that an appeal lies as of right from High Court orders concerning applications for review under Order 45 Rule 3 of the Civil Procedure Rules. However, as conrmed by the Supreme Court, Article 164(3) of the Constitution does not give an unfettered right of appeal, and also acknowledges that statutes can prescribe the right of appeal. 28. In this respect, Section 102G (3) of the KICA expressly denies the right of appeal from decisions of appeal from the CAMAT to this Court. It is notable that this situation is not unique to this application, since a number of statutes do limit the right of appeal to this Court. Indeed, the issue before the Supreme Court in Nyutu Agrovet Limited -vs- Airtel Networks Kenya Limited; Chartered Institute of Arbitrators Kenya Branch (supra) involved the issue of whether there was a right to appeal to the Court of Appeal under section 35 as read together with section 10 of the Arbitration Act. 29 Lastly, by way of rationale, Section 102G (3) of the KICA is in the class of what are commonly referred to as nality clauses, and in our context, restricts second appeals from decisions of some tribunals and administrative bodies in the interests of nality of disputes. The law in this respect provides for review mechanisms to address mistakes made by a nal Court which mechanism was already exercised by Geonet. In any event, if the appellant wanted to test the waters as far as the right of appeal is concerned, in view of Section 102G (3) it should have led an application for leave to appeal rst and not plunge into the deep end in the rst instance. 30. For the foregoing reasons, we nd that the Notice of Motion application dated 17th October, 2023 is merited for the reason that Geonet/appellant has no right of appeal to this Court by dint of Section 102G (3) of the KICA. The said application is hereby allowed and Geonet’s Notice of Appeal dated 20th September, 2023 and the Record of Appeal dated 5th October, 2023 are hereby struck out with costs to Safaricom/applicant. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026. W. KARANJA …………………………….. JUDGE OF APPEAL F. TUIYOTT …………………………….. JUDGE OF APPEAL L. ACHODE …………………………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1913/eng@2026-09-25 5

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