• Gikabu had sought an inquiry as to damages for breach of confidence or, alternatively, an account of all profits made by Safaricom from the use of the confidential information or innovation.
• Nzioka found that in as much as there may be a possibility that Safaricom may have incorporated some of Gikabu's components in its product, there was a need for proof.
Image: FILE
The High Court has dismissed a case filed by an innovator who sought to stop Safaricom from launching a mobile application he claimed was his idea.
Jonathan Murangiri Gikabu wanted to block Safaricom from launching the M-Pesa 1 Tap service or exploiting it concerning the information about the innovation. He had sought an award of Sh209 million.
Justice Grace Nzioka ruled otherwise. “I find the plaintiff has not proved its case as required under the law and I decline to grant the orders sought."
Nzioka found that in as much as there may be a possibility that Safaricom may have incorporated some of Gikabu's components in its product, there was a need for proof.
“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,” she said.
"First and foremost, although these amounts include a sum of Sh9.4 million incurred on the innovation, a special damage claim should have been pleaded. It was not. However, an award of damages is based on proved liability.”
Gikabu had further sought an inquiry as to damages for breach of confidence or alternatively, an account of all profits made by Safaricom from the use of the confidential information or innovation.
“An order of appointment of a receiver to collect and receive all the profits made by the defendant from the use of the confidential information or innovation of the plaintiff and an order for giving of proper directions for that purpose,” Gikabu urged the court.
He also sought a court order for payments of all sums found to be due to him plus interests.
He argued 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".
After evaluation, the application was successful and phase one was funded by the foundation, through Equity Group Foundation and later by the University of Nairobi. Experiments on the innovation, he said, were undertaken between May 1, 2015, and October 31, 2016.
According to Gikabu, as he prepared the application for the grant in October 2014, he shared the innovation with Safaricom Plc through an email dated October 21, 2014, on the condition that the company would treat the same in confidence and in good faith.
"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, the revelation of the confidential information to the Safaricom carried with it the core duty of loyalty and fidelity, whereupon it owed him a fiduciary duty not to misuse that confidential information,” he said.
However, on or about May 10, 2017, Safaricom unlawfully made use of the information by launching an innovation—NFC Mobile Payment System for Non-smart phones—in the guise of MPesa 1 Tap and unlawfully made profits, hence the retention of the profits amounts to unjust enrichment on the part of the company, he said.
But Safaricom denied liability, arguing that Near Field Communication Technology is an open-source of information in the public domain, and cannot be attributed to Gikabu's innovation as the technology has been used by, among others, Card Planet, Buy-more and Beba Pay, which was discontinued on March 15, 2015.
Further, since 2012, the company has explored the NFC technology through a product known as My 1963, which was implemented as a mode of the cashless fare payment card for public transport in Kenya, and as soon as Lipa na M-Pesa was launched, a pilot project was conducted involving 1,500 employees who used the card to pay for their meals at the Safaricom’s cafeteria.
Safaricom argued that the M-Pesa 1 Tap solution contains a proprietary and innovative authentication process that has no link to Gikabu or the alleged innovation. The company also denied receiving any confidential information from him.