A Nairobi woman has moved to the High Court seeking to declare unconstitutional Safaricom’s policy of retaining money mistakenly sent to customers with outstanding Fuliza loans.
A petition filed before the High Court of Kenya has challenged Safaricom PLC over what the petitioner terms an unfair policy that allows the company to retain money sent in error where the recipient has an outstanding Fuliza loan.
Dispute Over KSh2,700 M-Pesa Transfer
According to court documents, Eunice Nganga mistakenly sent KSh2,700 to the wrong mobile number on September 4, 2024. She immediately initiated a reversal request through the standard M-Pesa reversal process.
The reversal was declined after she was informed that the recipient’s line had an outstanding Fuliza balance and that the money had automatically been deducted to offset the overdraft.
Nganga argues that the funds were neither withdrawn nor used by the unintended recipient but were automatically appropriated by Safaricom to settle the recipient’s Fuliza debt.
Constitutional Violations Alleged
After visiting a Safaricom shop in Nairobi and issuing a formal demand letter, Nganga claims she was told the money could not be refunded and was advised to report the matter to the police.
In her petition, she alleges that the policy violates several constitutional provisions, including:
- Article 40 – Right to property
- Article 46 – Consumer rights
- Article 47 – Right to fair administrative action
- Articles 28, 32 and 36 – Rights to dignity, conscience, opinion and freedom of association
Nganga maintains that her contractual relationship with Safaricom does not extend to settling another customer’s Fuliza debt using money she sent in error and that she did not consent to such an arrangement.
Broader Impact on M-Pesa Users
The petitioner argues that the issue affects many Kenyans who mistakenly send money to customers with outstanding Fuliza balances and are unable to recover their funds.
She has moved to court under Articles 22, 23 and 165 of the Constitution seeking declarations that the policy is unconstitutional, unlawful and amounts to an unfair trade practice.
Orders Sought
Among the orders Nganga is seeking are:
- A declaration that Safaricom’s policy is unconstitutional
- An order quashing the policy
- A prohibitory order restraining its continued implementation
- A refund of KSh2,700
- General and punitive damages amounting to KSh50 million
- Restitution for affected customers who demand refunds
The case is expected to test the intersection between mobile money services, overdraft facilities, and constitutional consumer protections in Kenya.
