PART ONE
TRANSCEND MEDIA GROUP v SAFARICOM LTD
WITH MORE THAN 22.2 million subscribers, Safaricom is the leading mobile phone service provider in this region.
TRANSCEND MEDIA GROUP (TMG) on the other hand is one of the top communication and advertising firms in Kenya and the East African region. The company is affiliated to Inter Public Group of Companies (IPG) which comprises of McCann Worldgroup and Mullen Lowe
Apparently, there has been no love lost between Safaricom and TMG but things reached a crescendo early this year over a business relationship. The full-scale legal battle at the Magistrate Court and High Court at Milimani, Nairobi is anchored on a multi-million youth campaign project dabbed Blaze Kenya, a product to help the youth be in control of their finances and to succeed in various fields
TMG claims to have designed the concept now used by their rivals, after poaching their (TMG) staff involved in putting it together. That is the cracks of the matter. And it’s a matter that the mainstream media has opted to keep out of their pages and airwaves for fear of possible commercial repercussions.
JANUARY 2016
In January 2016, Safaricom decided to bring in a second agent to provide its Creative and Digital Services. The agent was to undertake the implementation of Blaze brand.
On January 25, Safaricom send emails to 8 “prequalified” communication and advertising companies inviting their bids for the job.
The bidders were required to conceptualize and develop a Communication Strategy and Creation, targeting the youth market segment. According to Safaricom, the youth (60% of Kenya’s population) are their investment for future returns.
TMG embarked on preparing the material. Four TMG employees were heavily involved in the project. These were:
Thomas Omanga – Client Service Director who led the Safaricom pitch
Tom Timla Tieng Wango – Senior Art Director
Brian Oyugi – Designer
Christine Muchendu – Accounts Director
FEBRUARY
ON February 12, TMG submitted their bid to Safaricom under four titles:- Tribe Digital, Hack it, Next Nation and Safcom 2.0
On January 17, TGM was invited to make presentations to Safaricon’s Evaluation Panel. Shortly after, the panel toured their offices on a due diligence mission.
MARCH
On March 1, Flora Mangala the Safaricom’s Category Sourcing Manager sent an email to TMG inviting them to make the presentation the following day, to Safaricom’s Executive Committee comprising of CEO Bob Collymore, Director of Consumer Business Sylvia Mulinge among others.
On Wednesday, March 2, in Ndovu Boardroom at Safaricom Hq, TMG made the 45-minute presentation. Those present for TMG were the CEO Anthony Gatheca, Executive Chairman of McCann World Group Africa Fraser Lamb, the Media Brands managing director Brad Smale, the TMG’s Executive Creative Director John Kiarie, Mr Omanga and TMG director Lai Muthoka.
MEANWHILE to safeguard their intellectual Property interest, TMG applied to the Kenya Copyright Board for the registration of the concepts under the four titles: Kenya Speaks Safaricom, Youth Assets Communication Strategy, Digital Tribe and Shangwe Sato. They were issued with Registration Certificate on May 10.
By then, several developments had taken place.
Safaricom finally shortlisted 3 companies – TMG, Brainwave Communications and Saracen Media Ltd – for the final pitch.
APRIL
On April 1, Safaricom signed a two-year contract with Saracen Media for implementation of the Blaze project to run up to March 31, 2018 with an annual retainer of Ksh104,367,168.
On April 4 Omanga and Timla resigned from TMG. Omanga had been hired by TMG on November 4, 2013 on basic salary of Ksh500,000 while Timla was employed in September 2012 on a salary of Ksh245,000.
On April 13, Christine resigned from TMG as Account Manager. The following day (14th), Brian Oyugi resigned as Designer.
On April 15, Safaricom’s Emily Too informed TMG that their bid was unsuccessful. She however could not disclose the winning company according to Mr Lai.
On April 16, Saracen Media carried an advert in the newspapers confirming they had hired Omanga as Head of Strategy and Timla as Creative Director
WHAT happened thereafter was an interesting corporate drama (to be continued)

PART THREE
TMG v SAFARICOM
(DONT READ THIS BEFORE READING PART ONE AND TWO)
AS POINTED out in part 2, TMG decided to take the fight to the mother company in London – Vodafone Group Services who are major shareholders in Safaricom.
On April 18, Tony Gatheca the TMG's CEO wrote the damning letter to Vodafone complaining against the tender procedure. He claimed that senior staff at Safaricom had decided that the multimillion contact would be given to Saracen Media but in the implementation of Blaze Kenya the agent had to work with the four employees of TMG who had prepared the TMG bid material.
He claimed Safaricom had only called TMG on Friday April 15, to inform them of the outcome after realizing it was already a topical issue in the industry.
“Saracen confessed they had been forced to work with Fieldstone Helms,” Gatheca wrote. He claimed Fieldstone was startup company with no offices and had not bided at all.
Gatheca implicated Safaricom's Sylvia Mulinge and Head of Risk Nicholas Mulila in the scheme to poach their employees so as to give them the work "through the backdoor".
Gatheca claimed that Mulila had tried to extort a bribe of Ksh50 million from TMG chairman Michael Njeru during the bidding process but failed. He claimed Mr Njeru had evidence of text messages from a proxy used by Mr Mulila in the extortion scheme.
Gatheca wrote that according to Mulila, the chairman (Njeru) was broke and could not afford to pay the Ksh 50 million bribe.
Gatheca said it was unfortunate that Bob Collymore who had been enlisted by President Uhuru Kenyatta in the fight against corruption could not tame the same vice among Safaricom staff especially in this tendering scheme. He further claimed that Bob favored his old best friend Bharat Thakrar the CEO of WPP. He accused Bharat of being behind the poaching of TMG staff an attempt he had made several times before.
“Bob and Bharat are best friends to an extent they meet every Tuesday evening socially in a group they dabble in the Whiskey Club together with others,”Gatheca told Vodafone.
He said they were confident that they had won the bids and demanded to be shown the score card. He asked Vodafone to investigate the alleged scam that was already the talk in the industry to protect their reputation globally. He accused senior Safricom personnel of having induced their employees to decamp and expressed fears the mobile phone service provider would use their intellectual property without compensation.
On May 27, TMG carried a long media advert explaining their position to counter print and social media reports regarding them and the controversies surrounding the contract.
THIS is what Safaricom could not stomach. On June 15, through lawyer Nelson Havi they filed a suit at the High Court seeking to have TMG restrained from publishing any more words linking Safaricom to corruption and illegality regarding the tender for Blaze Kenya. They also sought to have TMG restrained from interfering with implementation of the contract between Safaricom and Saracen Media in relation to Blaze brand promotion as well as damages for the falsehood and costs of the suit.
According to Safaricom, TMG did not win the tender. Safaricom denied having a hand in poaching of TMG staff and their recruitment by Saracen. They denied having ever engaged in corporate espionage, sabotage or corruption in the Blaze brand promotion tender.
They further claimed TMG had been disgruntled for losing the tender and had resulted to publishing the falsehood in order to induce Safaricom to terminate the contract with Saracen and transfer the Blaze brand promotion to them.
Safariom claimed TMG had resulted to smear campaign to malign its directors and staff. They claimed the court action instituted by TMG to impound computers and documents from Saracen was calculated to injure Safaricom in its business and to cause pecuniary damage to Blaze brand promotion.
Safaricom maintained they were the originators of the developed work for Blaze promotion.
They claimed TMG had registered the works with Kenya Copyright Board purely to use it to extort from Safaricom.
Safaricom said they had suffered irreparable damages due to TMG action and demanded damages.
Tomorrow, we go through the defence filed by TMG director Lai Muthoka on July 14, through lawyer Paul Maingi. We will then deal with the outcome of the case. But more interesting will be the information retreaved by the CID's Cyber Crime Department from the computers impounded from Saracen. Stay right here.

PART FIVE
SAFARICOM v TRANSCEND MEDIA GROUP
RULING
THE CASE was heard by Justice Francis Tuiyott of the Commercial Division of the High Court in Nairobi. On October 4, he delivered a 45-page ruling. The prayers by Safaricom were to have TMG and its agents restrained from publishing any other words attributing corruption and illegality to them over the Blaze brand promotion. They also wanted TMG restrained from interfering with the Blaze campaign in any way and the contract between Safaricom and Saracen.
Safaricom case was made by Daniel Ndaba through lawyer Nelson Havi.
TMG had defended the case vehemently though their director Lai Muthoka, represented by lawyer Paul Maingi of Maingi Musyimi & Associates.
The judge was quick to note that Safaricom was seeking to curtail TMG from expressing itself on the matter regarding the Blaze brand promotion.
They were seeking Court-sanctioned censorship. And hence there was tension between this prayer and the TMG’s Freedom of Expression under Article 33 of the constitution.
The burden of proving the elements of action in a suit of malicious falsehood lay with Safaricom as the Plaintiff in this case. And that burden was critical in proving their case against TMG based on the letter to Vodafone of April 18 and the TMG advert carried out in the Daily Nation on May 27.
TMG had denied malicious falsehood maintaining that theirs was fair and true comment, their right of reply and justification and publication made in good faith without malice and in public interest.
The court pointed out the arguable question as to whether Vodafone and Safaricom were one or two separate entities but for purposes of the application, the judge took the position that Vodafone was a third party.
The judge reproduced the letter and the advert and then went on to pose the questions for determination. Had Safaricom established falsity by TMG?
“There was a claim by TMG that were it not for the irregularities that beset the tender process, it would have won,” the judge noted. He went on, “To disprove this claim it would be expected that Safaricom would set out or explain how it found the bid by Saracen to be the most responsive. In addition the claim of irregularities needed to be confronted by Safaricom with some clear evidence. No such evidence was forthcoming from Safaricom…” he said.
The judge noted that Safaricom had not produced any affidavits by its staff Sylvia Mulinge and Nicholas Mulila to discount allegations that they engineered the exit of TMG employees from the company. The falsity of these allegations could not be established without a word from the two.
Safaricom had not adduced evidence to show that the KPMG Audit Report had not been finalized and in any event they had not demonstrated that the claims by TMG were false, the court held.
The judge ruled that Safaricom had the burden to prove that the allegations of corporate espionage and sabotage and the impropriety of the Tendering process and the implementation of the Blaze campaign were false.
No one of the Safaricom members of staff who took part in the tendering process had sworn affidavits to discount the allegations of corruption activities in the process, as made by TMG.
For example on the allegations that Mulila had attempted to extort a Ksh50 million bribe from TMG chairman to award them the contract, the judge said, “Surely if the falsity of this allegation was to be established Mr Mulila would have to say something about it,”
The judge said (as I too would have) that the allegation on whether Safaricom was infringing on the copyright of TMG would have to wait for determination by the magistrate court, where the case is still pending.
The judge pointed out that Safaricom had approached their application on the assumption that it was for TMG to prove truthfulness of the allegations made.
“Safaricom may have misapprehended the law on this aspect and did not make sufficient effort to prove falsity. It approached this matter as though the cause of action it had presented was one of defamation where falsity is assumed,” he ruled.
The judge said it seemed that generally it was more challenging to bring a claim of malicious falsehood that an action in defamation.
The judge went on to deal with other legal issues questions that I will not dwell on.
He finally ruled that Safaricom had not demonstrated the falsity of the publication made by TMG’s CEO Mr Gatheca. Therefore it had not established that it had suffered loss by unlawful means.
How about the impounding of computers from Saracen, which Safaricom claimed was targeting their business? The judge noted that the impounding was made following an order issued by the magistrate court. And there was no suggestion by Safaricom that the order was unlawful.
“The inevitable decision this court reaches is that Safaricom has failed to demonstrate that this is one of the clear cases which warrants the grant of an injunction at an interlocutory stage to curtail the freedom of Expression and Speech by the Defendant (TMG)” the judge ruled.
With that, Safaricom lost the application.
NOTE:
To help you understand this matter well, this was an application by Safaricom to gag TMG from speaking about the Blaze campaign. It was not a determination on the copyright war. That war is still pending at the Magistrate Court. That case was filed by TMG against 11 defendants (Safaricom, Bob Collymore, Sylvia Mulinge, Flora Mangala, Emily Too, Flora Baiya, Janice Kemoli, Thomas Omanga, Timla Tieng, Saracen Media and Fieldstone Helms). I will be analysing it as time goes by.
Tomorrow, we go back to the CID forensic report on the computers and material confiscated from Saracen. This is the latest front in the copyright case at the Magistrate Court. Till then, goodnight Kenyans

PART SEVEN
TMG v SAFARICOM (YOU MUST READ PART ONE TO SIX TO UNDESTAND THIS)
-Safaricom has given the tender to Saracen with a condition that they must work with Thomas Omanga and his family company Fieldstone Helms.
-Omanga had appeared before Safaricom bosses as part of the TMG team and Safaricom knew he was a TMG employee but was instigating his poaching, together with three other colleagues.
-Saracen directors especially George Wanjohi are uncomfortable with being forced to work with Thomas and his company. He is not hiding that feeling in their internal emails.
-Safaricom managers are meeting Thomas and Timla behind the scenes, knowing he is not an employee of Saracen but TMG.
PART SEVEN
Several emails were exchanged on March 18. But it was this one by Wanjohi to fellow Saracen directors Sammy Thuo and Lenny Nganga that said it all. He was talking about the “Omanga agreement:
He started it artistically with a line – “Saracen couldn’t handle Safaricom”
Dear Sammy
Iam concerned about protecting Saracen and hence my counsel that we do this the right way now, at the beginning, before everything gets carried away and we do things we may regret later. Your ideas of buying into Fieldstone etc are good, but we must review soberly as to the way forward. While I understand your eagerness to sign the contract in your haste please do not miss the main issue, one which has great potential to become major threat to the business simply because Saracen does not have control of critical element – the creative. Refer to what you told me on the phone earlier:
1. Saracen is the contracted agency
2. Saraficom has ordered (not requested or suggested, to paraphrase your words) Saracen to work with Tom.
3. Tom and Saracen are willing to work together.
Please note that in the arrangement above, now and in the future as far as safcom the company (not the individuals you mentioned) is concerned, Saracen is solely responsible for creative work. It is Saracen name on the line. Safcom as a company will neither know nor care about the proposed arrangements with Tom. Safcom will know Saracen.
Therefore contend that Saracen must protect itself in the following manner:
Safcom must be made aware of the arrangement between Tom and Saracen specifically because Safcom (or key people in safcom) is the one demanding that arrangement. Otherwise there are other arrangements that can be made for example Saracen could have to hired (sic) another creative director. Or Safcom can hire both Saracen and Tom (or his company) individually.
The point is Saracen must not accept responsibility for creative being done by somebody who is dictated to Saracen by Safcom, somebody who is not and will not be under the control of Saracen and this must be made clear to safcom ab initio.
The current scenario, Saracen is being made responsible for yet without authority to control creative. What happens the day Saracen is to present creative and its is not ready on time? Or Tom is missing? Is it Tom who will take the heat? No its Saracen. Who will Safcom fire? Saracen. Not Tom. What will go out to the market? Not that Tom couldn’t make it but Saracen couldn’t handle Safcom….”END QUOTE..
It was clear that Saracen was being forced by Safcom to work with Thomas Omanga by Safcom long before he had resigned from TMG. And Sracen was apprehensive of any eventualities. But why was Safaricom demanding that Thomas Omanga be part of the team yet he was the key player in the presentation made by TMG just a few days earlier?????
From this point, Thomas became a driver of the communication strategy in the network. He wrote more emails to the team than anyone else. He presented creative material to the team and engaged in in-depth discussions of the designs, strategies and the campaign ideas that Saracen was intending to roll out. And he was still on TMG payroll.
ON MARCH 21 1t 8.39am Lenny Nganga wrote an email to colleagues on the same Omanga agreement. It read:
Mr Chairman
I trust you are well and you had a good weekend. We have an opportunity to work with Safaricom and they have insisted we work with a company named Fieldstone Helms for the creative protion….Hence FH have put together the attached collaboration and non circumvention agreement….”
It was almost clear Fieldstone was unknown to some of the directors and it was imposed on them by Safaricom.
The team went further to discuss how to lease premises and set up offices for their upcoming blaze project. Some of the ideas being shared by the team including Thomas were how the campaign could culminate in a request for a National Youth Day, for the youth to celebrate and showcase themselves. It was even suggested that the Youth Day could be inaugurated as a National Holiday by the President, and the youth would lead in cleaning streets as done in Rwanda, people to buy from businesses run by the youth, all entertainment that day be by the youth and all the music on radio before those under 25…”
The idea was discussed with excitements through the email exchange. Then there was the “market shaping phase” idea. A video showcasing successful Kenyans with the names dropped as Kirubi, Kidero, Uhuru, Bob Collymore….and the details of how it would be executed was discussed at length.
Then there was the "Blaze Day" idea where companies could be run for a day by persons under 25…..
The team continues meeting and engaging intensely on how to manage the Blaze campaign.
On March 23, Flora of Safaricom wrote an email to Sammy Thuo:
Afternoon Sammy
We would like to thank you for your interest to partner with Safaricom for the second ATL/BTL scope of work and are considering awarding Saracen the scope. Following the tender process we are working with the assumption that Saracen has been able to understand the safaricom business. You are therefore requested to send us a revised organogram structure and commercial proposal based on scope shared during the tender process….”
For Thomas Omanga to be available for meetings with Saracen director and the strategizing team, he had to get a way of hoodwinking his TMG bosses regarding his whereabouts. In one email he sent to the team on March 24 titled, “meeting this evening” he wrote:
“If you guys still want to meet, I can come to Saracen. I’ll rehearse a reason why Iam there. Let me know..”
By that same day, March 24, Saracen had become aware that they were winning the tender and were embarking on recruiting staff.
Lenny Nganga wrote an email to an agency titled “URGENT Recruitment Drive
“Dear Christine and Minnie
We have just won a very large client and we urgently need to recruit at least 35 people in various roles. We would like you to handle the offer letters, transitions (persons leaving and payments in lieu of notice) contracts and medical cover sourcing…….”
But as time went by, the double dealing by Thomas and Timla between TMG and Saracen/Fieldstone Helms became difficult to conceal and manage (I will pick up from there in Part 8).
NB: Disregard numerous spelling and grammatical errors in this update.
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Can't and won't hold brief for Transcend, but that's not the issue here is it? Nor is the issue that they were in NYS.

The issue is that their employees colluded with Safaricom to basically steal from them.

For those in business, this is a serious concern.

Especially with all the rumors out there that safcom has that tabia of taking people's ideas and pretending its their own.

Here, from those email exchanges, its quite obvious from my layman view that safcom stole Transcend employees and forced sarancen to work with Transcend ex employees.

That is illegal.

Now go on about how safi safcom is.

True 2012

You can win a tender and lose it coz you slept with the CEO'S wife last night.

I can and would and will always accept Safcoms insistence that Transcend lost the tender because of being not good.

Heck, I can't give my money to someone that I know has stolen or can be bribed. Hata Njunge the kikuyu drunkard in love with julie, goes back to the policeman with a real driving license.

Tumekataa kupatia wezi our money...

But is this story really a story about not working with thugs or really a story about fishing and stealing workers from a company?

If safcom didn't like transcend's heat, why not just say so and give the tender to someone else.

You see 2012, that's where we part ways with safcom. I had a friend called Idd Salim. I believe the best IT guy or coder that Kenya shall ever have.

He had that problem too. He'd code, he'd present, his idea stolen by safcom, coz he was too hot to handle...

It's safcom's modus operandi. In fact, since I've said that, they shall now send like 1 million lawyers to my house kesho...

The issue is not how bad and how terrible transcend media is. I can't give them a job..by the way..

The issue is

Did safcom talk to transcend media employees during a period when a transaction was going on? Did safcom actively engage in stealing an employee of another company and force another company to accept these employees? Were these employees, moonlighting with a rival?

This is exatly like those fellows that Horton loves so much sijui the Alma...Why people choose my name I can't understand.

Corporate espionage is worse than terrorism.

Most important

Is this common practise in Safcom

Next time I go for a presentation with safcom, should I leave my employees at home, just incase they pay the media to say that I was in NYS saga?

I'm sorry but this is bad.

VERY VERY VERY BAD!!!

Who shall every go to safcom and pitch an idea.

I care about Transcend all all about corruption. But we have a jubilee thread for that.

But are safcom thieves too?

Stealing employees?

What was so hard for them to just hire another company?

But they forced one company Sarancen to work with illegal alince, ask hardwood.

This is not good. I don't care what people think about Transcend

But heck, I run a company....I would fight you to the core if you stole my employees.

Mambo ya kplc is irrelevant. Wahome Thuku is just quoting evidence

Thus far, Safaricom is a a thief and the media in Kenya including Impunity are just fake.