Photo: CIO Kenya THE British lawyer for President Uhuru Kenyatta has sued Safaricom in the High Court in a confidential petition. The registry book shows that Steven Kay QC, Uhuru's lawyer at the ICC, last week filed a case against Safaricom to be heard this week. The case was filed with Ogetto, Otachi and Co advocates.
The hearing has not yet started but Kay has requested that "the court make orders for the confidential filing and hearing of the constitutional petition." He has also requested that "access be restricted to the parties".
If the court grants the order, the media will not be allowed to report the proceedings once the case begins. The case listed as 389/13 has only Safaricom as the respondent. Three prayers have been listed in the files; protection of the petitioner's right under the constitution; order for information; and such other orders.
It is not clear why Kay would launch a suit against Safaricom or indeed whether the suit involved President Kenyatta at all. However there are unconfirmed reports that ICC Chief Prosecutor Fatou Bensouda has collected data from Safaricom and Airtel to show the contacts and whereabouts of the accused Kenyans during the post-election violence in 2007/8.
The trial of President Kenyatta is due to start on November 12 in the Hague while the trial of Deputy President William Ruto and broadcaster Joshua arap Sang will start on September 10. The mobile phone data might also reveal links with Mungiki members and possible MPesa transfers.
Last November Bensouda told the ICC judges that she had information on how Uhuru gave instructions, money and materials to the Mungiki so that they could attack perceived ODM supporters in Nakuru and Naivasha.
She complained to the judges that several Mungiki senior members had later "disappeared." Questions have also been raised over a Harvard University project that analysed the path of malaria in Kenya by secretly tracking the physical movements of 15 million Kenyan mobile phone subscribers after the election. Subscribers were neither alerted nor consulted.
Kay is a British international criminal lawyer who has represented Uhuru at the ICC since 2011 when he was first charged along with fortmer civil service boss Francis Muthaura and Police boss Gen Hussein Ali. The ICC has dropped the cases against Muthaura and Ali.
Kay is not known to handle cases for any other Kenyan apart from Uhuru. It is the first time that Kay has lodged a case in the Kenyan courts. Any commonwealth lawyer can practice in Kenya. Uhuru is charged, as an indirect co-perpetrator, with five counts of crimes against humanity committed during the post-election violence in 2007/8. The judges are yet to rule on Uhuru's request to be allowed to attend some of his trial through video link. The cases against Ruto and Sang are due to start on September 10.
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