Innovator loses case against Safaricom’s Mpesa I Tap Service


An innovator has lost a case challenging use of Safaricom PLC’s further launch of Mpesa I Tap Service.

Justice Grace Nzioka ruled that the plaintiff, Jonathan Murangiri Gikabu failed to prove his case as required by law.

“I find that the plaintiff has not proved his case as required under the law and I decline to grant the orders sought,”  ruled the Judge.

Gikabu told the court that he prepared  the  application for the grant in October,  2014 and shared  the innovation  with Safaricom PLC through  an email dated 21st October 2014, on condition that the company would treat  the same in confidence and in good faith.

He argued that he communicated the confidential  information through a proposal which Safaricom received and acknowledged and the information  was communicated for the purpose  of negotiating an agreement  between the parties for creation of the said innovation.

” As such, the defendant was not supposed to use it for any other purpose other than the intended, nor disclose it to a third party, without his prior consent and pursuant  to the aforesaid, the practice in the Industry  is such that, revelation of the Confidential information to the Safaricom carried with it the core duty of loyalty and fidelity, whereupon the it owed him a fiduciary duty not to misuse that confidential information,” he said.

Gikabu goes on to argue that on or about September 2011, he started working on building blocks of NFC Mobile Payment System for Non-Smartphone, while working on an application for the  14th Round of Grand Challenges Exploration  under  the  topic,  “Enable Universal Acceptance  of Mobile Payment, by the Bill and Melinda Gates Foundation and after evaluation thereof, he was successful and phase one (1) was funded by the Foundation through  Equity Group Foundation and later by the University of Nairobi, where the experiments on the innovation began from 1st May 2015 to 31st October 2016.

However,  in breach  thereof,  on or about  10th May 2017, Safaricom unlawfully made use of the subject information by launching an innovation; “NFC Mobile Payment System for Non-smart phones, in the guise of “MPesa I Tap” and unlawfully made profits there from and the  retention  of the  profits  amounts  to  unjust enrichment on the part of the company.

Gikabu sought to block the Telco giant by itself, its servants or agents or otherwise whatsoever from further launching Mpesa I Tap service or otherwise exploiting the said information  or innovation or any part.

He also sought for an inquiry as to damages for  breach of confidence and further   or  alternatively,  an account of all profits  made by the defendant from use of the said confidential information or innovation.

However, Safaricom denied liability by arguing that, Near Field Communication Technology (NFC), is an open source of information  in public domain, and cannot be attributed  to the plaintiffs innovation and the technology has been used by among others Card Planet, Buy-more and Beba Pay, which was discontinued on 15th March 2015.    

The Telco further responded that since 2012, it has explored the NFC a technology through a product known as; “My 1963”,  which was implemented  as a mode of cashless fare payment card for public transport  in Kenya and as soon as Lipa na MPesa was launched, a pilot project thereof was conducted  involving 1,500 employees who used the card to pay for their meals at the Safaricom’s cafeteria.

The judge found that as much  as there  may be a possibility that Safaricom may have incorporated some of ohis  components in its product, there was need to provide evidence in proof thereof.

“It is not a matter of perception or morality. Of course, it may be unprofessional to do so or morally wrong. But from the legal point of view, the plaintiff bore the burden to prove the same,” ruled Justice Nzioka.