Man with 'betting addiction' loses plea to force firm close his account

The High Court has rejected a gambler’s plea to force a betting firm to deactivate his account to manage his addiction.

Mark Ndumia Ndung’u sued Shop and Deliver Ltd and the Betting Control and Licensing Board (BCLB), claiming that he had tirelessly asked the firm to intervene but in vain.

However, Justice Chacha Mwita found that he had lodged his complaint in the wrong court.

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The judge said the issue involved a contract, not a constitution or rights violation, and hence, it ought to have been filed before a Civil Court.

“Having considered the pleadings, arguments and the decisions relied on by parties, the conclusion I come to, is that this is not a constitutional petition. The issues raised in the petition having arisen from a contractual relationship, could only give rise to a civil suit if the petitioner thought there was violation of the statute governing that relationship. They could not be the foundation of a constitutional petition,” said Justice Mwita.

Ndumia testified that he registered for betting services with Shop and Deliver, which owns Betika, using his mobile number. He then realised that he had a betting problem and needed to quit.

This was in 2020.

He said the betting company’s customer care informed him on July 17, 2020 to leave the account dormant for some time, and it would be closed.

Ndumia said he insisted the account ought to be closed immediately.

He further said the customer care representative asked for a copy of his national identification card to start the process.

Nevertheless, he said, his demands were not honoured despite several calls and email reminders in August and September that year.

He told the court that he placed several bets between July 21 and August 6, 2020.

He blamed Shop and Deliver for this, arguing that if the company had closed the account, his betting addiction would have gone.

Ndumia said he lost Sh110,362 within 15 days of his request to close the account.

He asserted that the betting firm took advantage of him and benefited from his vulnerability.

According to him, Shop and Buy was aware that its services are potentially addictive and as such.

He stated that another account he had maintained with a separate betting company, 22bet, was closed within 10 hours upon request.

“It (the company) has an even greater duty of care to consumers who exhibit addictive tendencies and should assist by closing such accounts promptly on request. According to the petitioner, World Health Organisation  recognises gambling as a disease,”argued Ndumia.

Shop and Buy admitted that Ndumia was its online customer. Nevertheless, it stated that there was no activity to show that he had a gambling problem.

It claimed that between June 26, 2020, and July 17, when he requested closure, he had only deposited Sh36,065.

The firm further stated that Ndumia had enjoyed its services for only 21 days before he called for the account to be closed, and had won Sh118,941.48 and placed stakes worth Sh92,794.

Shop and Buy argued that he willingly committed to abide by the terms and conditions of “responsible gaming” and was reminded of this by a pop-up each time he logged in.

The company argued that he informed the customer care representative that he wanted to take a long break from betting, adding that they closed the account on September 15, 2020.

However, it stated that upon closing an account, a former customer may still be able to access limited functions but cannot place bets, which Ndumia was made aware of.

According to the betting company, he was told to leave the account dormant so that it would shut down automatically after a period of inactivity.

It claimed that the delay was caused by a system upgrade and its employees working in shifts and from home during the Covid-19 pandemic.

BCLB backed firm, arguing the petitioner voluntarily registered and had no medical report to support his claim that he had a betting problem.