Introduction
1. The petition dated 11 th December 2024 is supported by the petitioner’s affidavit in support of even date and Notice to Produce dated 2 nd March 2025.
2. The petition impugns the constitutionality and legality of the procurement process of Tender NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public wi-fi connectivity on a three-year framework (Framework Contract) in Lots and Tender NO. ICTA/OT/13/2022-2023 for the procurement of digital Super Highway Backbone and Metro (Framework Contract) in Lots.
3. On this premise, the petitioner seeks the following reliefs: -
a) A declaration be and is hereby issued that the actions of the 1 st , 2 nd and 3 rd respondents in causing the awarding of contracts relating to government’s Digital Super Highway Project to the entities linked to the 1 st respondent are illegal, unconstitutional, null and void;
b) A declaration be and is hereby issued that all contracts relating to the Digital Super Highway project awarded to entities linked to the 1 st respondent including but not limited to Nightigale Enterprises/Nightigale (EA) Limited are illegal, unconstitutional, null and void.
c) An order be and is hereby issued directing the respondents to repay back to the Universal Service Fund all monies paid to entities linked to the 1 st respondent, including but not limited to Nightigale Enterprises/Nightigale (EA) in relation to the unlawful and illegal contracts with respect to the Digital Super Highway Contracts.
d) A declaration be and is hereby issued that the 1 st respondent has grossly violated the Constitution of Kenya 2010.
e) Costs of the petition.
4. In opposition to the petition, the 1 st & 2 nd respondents filed a Replying Affidavit dated 25 th February 2025 and Further Affidavit dated 15 th May 2025, the 3 rd respondent filed a Replying Affidavit dated 17 th March 2025 and the 4 th and 5 th respondents filed Grounds of Opposition dated 14 th February 2024.
The Petitioner’s Case
5. According to the petition, the petition stems from non-compliance with the constitutional and statutory principles on leadership and integrity and the sanctity of public trust.
6. The petitions is hinged on the actions of the Communications Authority of Kenya (CAK) and the ICT Authority of Kenya for openly disregarding apparent and manifest conflict of interest in awarding various contracts to entities linked to the 1 st respondent who is the Chairperson of the Communication Authority of Kenya. The contracts are principally relate to execution and implementation of the Kenyan Government’s project known as the Digital Super Highway Project which is a cabinet approved project aiming at strengthening the country’s ICT infrastructure by increasing the network coverage across the country; reduce the cost of internet connectivity and enhance the delivery of e-government services, health, agricultural and financial services. The project is implemented and financed from the Universal Service Fund, a fund managed by the CAK, the 2 nd respondent.
7. The petitioner contends that a total of over fifteen billion Kenya Shillings will be spent for the implementation of the Digital Super Highway project which is to be done in two phases, with the first phase apportioned at Kshs. Five Billion and the second phase Kshs. Ten Billion.
8. The petitioner asserts that the responsibility of the execution of the Digital Super Highway project lies with the 2 nd respondent which has through a purported Technical Corporation Agreement, purportedly transferred functions such as sourcing, procurement and implementation of the project to the 3 rd respondent.
9. According to the Petitioner, the public is set to benefit from 100,000kms of fiber cables, 25,000 public hotspots, 1450 Digital Village Smart Hubs and Studios, 3 data centres and data protection and cyber security management all of which are expected to be set up should the project be properly and effectively implemented.
10. The petitioner avers that although the 2 nd respondent is mandated to administer the Universal Service Fund, it entered into an arrangement with the 3 rd respondent through a Deed of Transfer of Procurement Authority. Under the said arrangement, the 3 rd respondent was purportedly assigned the responsibility for facilitation of the rollout of the Optical Fiber Network Connectivity for the Digital Super Highway Project which responsibility includes the sourcing, contracting and implementation of the project. Notwithstanding the purported arrangement, the 2 nd respondent retained the critical functionalities and involvement of the project namely the financial responsibility still rested with the 2 nd respondent; it remained responsible for approval of budgets and for allocation of funds in respect of the project; it retained the powers to pay the contractors for the project and it was also part of the overall implementation of the project.
11. The petitioner asserts that the 3 rd respondent published various invitation to tender in relation to the Digital Super Highway Project which include TENDER NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public Wi-fi connectivity on a three-year framework (Framework Contract) in Lots as well as TENDER NO. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots. The tender documents were expressly clear and unambiguous on who was eligible and who was not eligible for the tender for example public employees and their close relatives, public officers and their relatives and those in conflict of interest from the tender.
12. Despite that, the petitioner reveals that the 1 st , 2 nd and 3 rd respondents caused the awarded tender to among others, entities which have a direct link to the 1 st respondent namely Nightigale Enterprises Limited which is currently known as Nightigale (EA) Limited which was awarded the following contracts; NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public Wi-fi Connectivity on a three year framework (Framework Contract) in Lots; NO. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots; contract for the provision of OGN OFC Maintenance for Q1 2024-2025 (July – September) for lot 6 Contract No. 2302210 to Nightigale (EA) valued at Kshs. 17,983,440/- signed on 8 th October 2024; contract for provision of OGN OFC Maintenance for Q4 2023-2024 lot 6 Contract No. 2240177 to Nightigale (EA) valued at Kshs. 14,383, 440/- signed on 8 th July 2024; contract for provision of maintenance services for the one government network infrastructure fibre optic cable on a three year framework contract ICTA/OT/10/2022-2023 awarded to among others Nightigale Enterprises Limited signed on 5 th July 2023 and contract for the procurement of digital superhighway fiber optic cable and associated accessories (framework contracting purchaser ICTA/OT/13/2022-2023 Nightigale Enterprises 5/06/2023.
13. The petitioner contends that Nightigale Enterprises Limited is an entity directly linked to the 1 st respondent and the said company has had a lot of changes on its records at the company’s registry both in terms of its officials and its shareholding as well as to its name. In terms of the name, Nightigale Enterprise Limited has since been changed to Nightigale (EA) Limited, in terms of shareholding, the petitioner avers that the company has undergone multiple changes which contextually taken, point to an express intention of fraudulent manoeuvre aimed at benefiting from contracts with apparent conflict of interest. The daughter of the 1 st respondent, one Evelyn Nyambura Mungai was until 29 th May 2024, just before the initial contract were awarded to Nightigale (EA) Limited, a very strong majority shareholder of the company with 70% of the shareholding while one Thomas Muya Njau held a mere 10% and one Ruth Waithira Kinyanjui held a total of 20%.
14. The petitioner reveals that the said shareholding changed particularly in the period following the company’s award of the Digital Superhighway contracts. Currently, the 1 st respondent’s daughter is no longer a part of the company’s shareholders instead Ruth Waithira Kinyanjui holds 90% of the company’s shareholding. The petitioner argues that the alteration of Nightigale (EA) Limited shareholding structure to omit the 1 st respondent’s daughter only happened in the period after submission of the bids for the Digital Super Highway tender. Thus, a conclusion is drawn that the shareholding structure was engineered to conceal the real beneficial owners set to benefit following the company’s winning the tenders for the Digital Super Highway project which is the 1 st respondent through her daughter Evelyne Nyambura Wanjiru. Further, the said Ruth Waithira Kinyanjui is only a proxy of the 1 st respondent and her daughter Evelyn Nyambura Mungai. Evelyne Nyambura Mungai and Ruth Waithira Kinyanjui are not strangers to each other but close business associates/partners/proxies for instance, apart from Nightigale (EA) they also carry out business through Nightigale Construction Limited where Evelyne holds 70% and Ruth holds 15% of the shares. Despite the glaring and apparent conflict of interest, the 2 nd and 3 rd respondents proceeded to award contracts with respect to the project to Nightigale (EA) Limited, a company directly linked to the 1 st respondent. Consequently, the Kenyan public stands to immensely suffer and stands to loose billions of public funds out of the actions of the respondents. Further, the public stands to suffer from the consequences of failed implementation of the Digital Super Highway project whose intentions were for the immense benefit of the public.
The 1 st and 2 nd Respondents’ Case.
15. The affidavit was sworn by David Mugonyi, the Director General or Chief Executive Officer of the 2 nd respondent and he avers that the 1 st respondent was appointed on 1 st December 2022 as the Board Chairperson of the Communications Authority Kenya vide Gazette Notice No. 1483 of 2 nd December 2022. The deponent avers that on 11 th December 2022, the 2 nd respondent and the 3 rd respondent entered into a Memorandum of Understanding (MOU) for purposes of enhancing coordination, cooperation, collaboration and understanding between the parties in the implementation of projects and programmes under Government Digital Transformation Agenda in the context of the respective mandates of the parties. The Government Digital Transformation Agenda is a broad initiative aimed at building a digital superhighway and digitization of at least 80% of government records.
16. Further to the MOU, the deponent states that on 17 th April 2023, CA and the 3 rd respondent entered into a Technical Cooperation Agreement to facilitate the implementation of the Digital Superhighway Project. The span of the optical fiber network to be rolled out was approximately 2500 km and was estimated to cost Kshs Five Billion.
17. It was a further agreed that CA may apply not more than 3% of the costs towards project management activities subject to necessary approvals.
18. The deponent avers that the role of the 3 rd respondent involved the following key responsibilities: facilitate the development and approval of the specific Project Concept Note in line with the Public Investment Management Guidelines under the Public Finance Management act, 2012; develop a detailed project design for the rollout of the fiber infrastructure ad establishment of connectivity to the identified beneficiary institutions; develop the detailed terms of reference and specifications among other requirements necessary to facilitate sourcing or procurement processes; execute the deed of transfer of procuring responsibility under the Public Procurement and Disposal Act; undertake procurement of the project components in full compliance with the Public Procurement and Disposal Act 2015 and the attendant regulations; establish relevant committees under the Procurement Act for the implementation of the project. While the obligations of the 2 nd respondent included; allocate financial resources from the Universal Service Fund and approve the budget to meet the project cost as outlined in the agreement; make payments against delivery of agreed project milestones as identified in the contractual arrangements with the contractors under the project; facilitate the requisite internal project related approvals; transfer procurement responsibility for the main component of the project to ICTA in order to achieve efficiency and participate in overall implementation of the project as per the project governance framework indicated in the agreement. The deponent stresses that the roles of the 2 nd and 3 rd respondents were distinct, particularly in relation to procurement which was solely the responsibility of the 3 rd respondent, the 2 nd respondent had no involvement in the procurement process.
19. The deponent states that pursuant to the Deed of Transfer of Procurement Responsibility in accordance with Section 52 of the Public Procurement and Asset Disposal Act and Regulation 39 of the Public Procurement and Asset Disposal Regulations 2020, the 2 nd respondent assigned the 3 rd respondent with the procuring responsibility for the facilitation of the rollout of the optical fiber network connectivity for institutions within ministries, counties, departments and agencies with a focus on health facilities, police stations, courts and schools in unserved and undeserved areas. In order to ensure compliance with Regulation 39(2) of the Public Procurement and Asset Disposal Regulations, 2020 it was a provision that the 3 rd respondent will submit duly certified invoices, signed contracts and local purchase orders issued, inspection and acceptance reports and Milestone or Completion certificates as appropriate to facilitate payments under the Deed of Transfer.
20. The deponent states that Tender No. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last Mile and Public Wifi connectivity on a three year (Framework Contract) in Lots and Tender No. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots were issued using open national tendering method. He further avers that the designated address for the submission of tenders was the offices of the 3 rd respondent and it was stipulated that the tenders would be publicly opened in the presence of candidates or their duly authorized representatives who opted to attend the tender opening session at the said offices. Upon the award of tenders, the contract were executed exclusively between the 3 rd respondent and the respective contractors. The deponent stresses that at no point did the 1 st and 2 nd respondents participate in the procurement process.
21. Vide letter dated 10 th September 2024, the 2 nd respondent requested the Office of the Attorney General for an advisory opinion on conflict of interest in the procurement process of Digital Superhighway Backbone and Metro (Framework Contract) to which the Solicitor General responded and stated that by the time of submitting the award, the 1 st respondent had already tendered her resignation as Director and Shareholder of Nightigale Enterprises Limited and taken up her appointment as the 2 nd respondent’s Chairperson. From the records provided by the Business Registration Service, the 1 st respondent ceased being a director and relinquished and transferred her shares on 5 th December 2022. Further, that although conflict of interest may involve legitimate personal affiliations and associations as well as family interests, those interests must be seen or established, to have unreasonably occasioned improper influence in a person’s performance of their official duty. From the documents provided, the Solicitor General rightly concluded that the 1 st respondent never participated or took part in the procurement proceedings or participated in any decision making with regard to the procurement or award thereof as to warrant a conflict of interest. Additionally, at the time of execution of the contract between the 3 rd respondent and Nightigale Enterprises Limited, both the 1 st respondent and her daughter were not directors or shareholders of Nightigale Enterprises and further from the resignation letters to the Registrar of Companies, they have no claims against the company monetarily.
22. The deponent avers that the 2 nd respondent’s board’s approval of the procurement budget was within its statutory mandate and it did not in any way constitute an attempt to influence or distort the procurement process. As such, there is no evidence of irregularities or improper conduct that could suggest any undue influence by the 1 st and 2 nd respondents in awarding the contract. The deponent maintains that neither the 1 st or 2 nd respondents were engaged at any juncture during the procurement process, nor participated in any decision making with regard to the procurement or award thereof as to warrant a conflict of interest, consequently, they could have not exercised or exerted undue influence over the allocation of tenders to various contractors.
The 3 rd Respondent’s Case.
23. The affidavit was sworn by Stanley Mutahi Kamaguya, the Chief Executive of the 3 rd respondent and he avers that the Constitution mandates that whenever a state organ or a public entity contracts for goods and services, the same should be done in a manner that aligns with Article 227 of the Constitution. He contends that the tender was advertised on MyGov newspapers on 7 th February 2023 and uploaded on their website and the government portal (Public Procurement Information Portal) with the deadline set for 28 th February 2023. They received 75 bids in response to the advertised tender and the 3 rd respondent then appointed a committee that held an evaluation exercise. The said committee made recommendations for the award of the tender for a total of 18 firms. The firms awarded the tenders included Egypro East Africa Limited; Alternative Communication Limited, Konvergence Network Solutions limited, Adrian Kenya Limited, Quavatel Limited, Nubly Technologies Limited, Professional Digital systems Limited, Smart Cloud Africa Limited, Soulco Kenya Limited, Soliton Telmec, Visibility Technology Service Limited, Optimax Group Limited, Dynamo Solutions Limited, Baran Telecom Networks, Tech Source Point Limited, Nightigale Enterprises Limited, Com Twenty One Limited and A-Z Technologies Limited in respective orders of their lots.
24. The deponent avers that the bidding parties were fairly and equitably evaluated and due diligence conducted on all bidders that were proposed for the award. He further avers that for contract ICTA/OT/11 and 013/2022-2023, Nightigale Enterprises Limited was recommended for the award under lot 6 for Kshs. 14,794,486/- and Kshs. 54,095,430/- respectively. Further for contract ICTA/OT/011 the tender price was below the estimated market value of Kshs. 31,825,677/- as was indicated in the framework contract and that was saving the public funds. On the issue of the violation of values and principles of good governance under Article 10 of the Constitution, the deponent avers that the 3 rd respondent followed the due procedure. The 3 rd Respondent further states that equal opportunity was accorded to all that showed interest and due procedure was followed during the bidding process and only the qualified were awarded the contracts. Further the deponent states that at the time of bidding and awarding of the Digital Super Highway Project, the Chairperson of the CAK was not a named shareholder or a director of Nightigale Enterprises Limited and Nightigale (EA) Limited.
25. The deponent states that the 2 nd respondent sought an advisory opinion from the office of the 5 th respondent on the question of conflict of interest of the 1 st respondent and through a letter dated 1 st October 2024, the Attorney General recused the 1 st respondent of all the accusations of conflict of interest. Additionally, the 1 st respondent was neither a director nor a shareholder of Nightigale Limited as at 19 th June 2023, thus the 1 st respondent or her issue were not party to the management and shareholding of the company prior to the execution of the tender awarding and acceptance.
The 4 th and 5 th Respondents’ Case.
26. The respondents aver that the petition does not demonstrate any cause of action against them, sought any reliefs or shown any infractions of the constitution by them. Further, the petitioner has not disclosed why it has not availed of the statutory mechanism for dealing with its grievance which provides in the first instance that a complaint is made with the Public Procurement Oversight Authority before approaching the court. Further the petitioner has not lodged a complaint with the Ethics and Anti Corruption Commission before instituting the present proceedings rendering the same premature. Thus, if the court were to exercise first instance jurisdiction over the subject matter of the proceedings it would undermine the statutory and constitutional mandates of public institutions specifically established to investigate and provide effective remedy to the same contrary to the doctrine of separation of powers.
27. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
28. The petitioner identified five issues for determination as follows:
• whether the court has jurisdiction to determine the matter;
• whether the procurement process for the government’s Digital Super Highway Project violated the constitutional principles of transparency, fairness and accountability under Article 227 of the Constitution;
• Whether the actions of the 1 st respondent amount to a conflict of interest and breach of leadership integrity as contemplated under Articles 73 and 75 of the Constitution;
• whether the ongoing implementation of contracts tainted by conflict of interest violates public finance principles under Article 210 of the Constitution and amounts to misapplication of public resources, and
• whether the petitioner’s rights and public’s interest in fair and transparent procurement processes were violated under Articles 10, 22 and 258 of the Constitution .
29. On the issue of jurisdiction, the petitioner submitted that the court has jurisdiction to determine the matters raised in the petition which concern the violation of constitutional rights, particularly the principles of fairness, transparency and accountability in the procurement process. The issues at stake are constitutional in nature and the petitioner asserted that they cannot solely be resolved by administrative bodies such as the PPOA or EACC. Thus, the petition is properly before the court.
30. On the second issue, the petitioner submitted that it is trite law that when a state organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost effective. To buttress that point reliance was placed in the case of Law Society of Kenya vs Attorney General & Another; Kenya Broadcasting Corporation (Interested Party) [2025] KEHC 3439 (KLR).
31. To that effect, Parliament enacted the Public Procurement and Asset Disposal Act, 2015 as the main statutory provision on procurement processes in Kenya and a legislative mechanism to enhance Article 227 of the Constitution. It is therefore the petitioner’s argument that the procurement process was illegal because it violated Article 227 of the Constitution on principles of transparency and fairness; it violated various sections of the Public Procurement and Disposal Act, 2015 and it violated the integrity clause under the tender documents.
32. Pursuant to the violation of Article 227 of the Constitution, the respondents facilitated the award of multiple contracts to Nightigale (EA) Limited which is directly or indirectly connected to the 1 st respondent in circumstances that concealed the true beneficial ownership of the company and evaded competitive safeguards through corporate restructuring and proxy arrangements. Reliance was placed in the case of Law Society of Kenya vs Attorney General & Another; Kenya Broadcasting Corporation (Interested Party) [2025] KEHC 3439 (KLR) where the court stated that ‘Further, it is the considered opinion of this court that the memo perpetuates a policy of discriminative exclusion in procurement of public goods and services hence does not promote principle of transparency and competitiveness in procurement of public services as provided for under Article 227(1) to ensure there is value for money . Similar reliance was placed in the case of Revital Health (Epz) Limited vs Public Procurement Oversight Authority & 6 Others Constitutional petition No. 75 of 2012 , the court stated:-
Procurement conducted outside the provisions of the Public Procurement Asset Disposal Act was not necessarily unconstitutional. Constitutionality of a procurement process is to be assessed on the basis of Article 227 of the Constitution. Article 227 provided that procurement by a state organ or public entity was to accord to a system that was fair, equitable, transparent, competitive and cost effective.
33. The petitioner further submitted that the respondents violated the said principles by awarding contracts to the 1 st respondent which created a conflict of interest and compromised the fairness and transparency of the procurement process. Additionally, the respondents failed to follow the statutory procedures laid out in the Public Procurement and Assets Disposal Act (PPADA) which further undermines the legitimacy of the process.
34. The petitioner argued that the respondents violated Section 59 of the PPADA as the 1 st respondent is the chairperson of the 2 nd respondent and she has an affiliation to Nightigale EA Limited, an entity that was awarded several contracts in relation to the Digital Super Highway project, a fact that has not been disputed by the respondents. Furthermore, the drastic corporate restructure done to Nightigale EA Limited before the award of the various tenders by the 3 rd respondent paints a glaringly bad and malevolent picture of the respondents intending to personally benefit from a project advanced as a public venture. Additionally, the respondents have alluded in their responses that the 1 st respondent need not have disclosed her direct or indirect affiliation to Nightigale EA Limited, which contradicts Section 59(3) of the Act. Accordingly, the petitioner argued that these are not mere speculations but cogent proof which indicates that the tendering process violated the law and thereby meeting the burden of proof as elucidated in the case of Peesam Limited vs Public Procurement Administrative Review Board & 2 Others; Hannaneli Suppliers Limited (Interested Party) [2025] KEHC 7277 (KLR) .
35. Pursuant to Section 83(1) of the Act, an evaluation committee may after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with the Act. The petitioner submitted that sufficient evidence has been put forth to show that the restructuring that occurred during the procurement window was clearly engineered to obscure the beneficial owner of the contracting entity and circumvent the disqualification clauses. That established that fact that the respondents were not too keen in conducting their due diligence to establish that the 1 st respondent has strong affiliate to Nightingale EA Limited thereby violating the various provisions of the PPADA.
36. The petitioner submitted that the tender documents expressly provided ineligible persons to apply for the respective tenders particularly clause 3.1 of the tender documents where it stated “Public employees and their close relatives(spouses, children, brothers, sisters, uncles and aunts) are not eligible to participate in the tenders.” It is not in dispute that the 1 st respondent held shares at Nightigale EA Limited and thereafter transferred the shares to her daughter, Evelyne Nyambura Mungai who after the entity had been awarded the contract effected the transfer of her shares to Ruth Waithira Kinyanjui her own proxy who assumed 90% ownership. Evidence of their joint business interests exist through their co-ownership of Nightigale Construction Limited.
37. On the third issue, the petitioner cited Article 73 of the Constitution which places an obligation upon the state and public officers to conduct themselves in a manner that is ethical, earns public confidence and trust and does not in any way bring disrepute to the office they occupy. Reliance was placed in the decision of the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) where the court stated:-
We wish to reiterate, having disposed of the issue of separation of powers, that leadership and integrity are broad and majestic normative ideas. They are genius of our constitutional fabric. However, their open textured nature reveals that they were purposefully left to accrue meaning from concrete experience. Restated, whereas these concepts germinate from the ground of normativity, they grow in the milieu of the facticity of real experience. Their life blood will therefore be our experience not merely the abstract philosophy or ideology that may underlie them.
38. The petitioner asserted that the concealed beneficial inte
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1. The petition dated 11 th December 2024 is supported by the petitioner’s affidavit in support of even date and Notice to Produce dated 2 nd March 2025.
2. The petition impugns the constitutionality and legality of the procurement process of Tender NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public wi-fi connectivity on a three-year framework (Framework Contract) in Lots and Tender NO. ICTA/OT/13/2022-2023 for the procurement of digital Super Highway Backbone and Metro (Framework Contract) in Lots.
3. On this premise, the petitioner seeks the following reliefs: -
a) A declaration be and is hereby issued that the actions of the 1 st , 2 nd and 3 rd respondents in causing the awarding of contracts relating to government’s Digital Super Highway Project to the entities linked to the 1 st respondent are illegal, unconstitutional, null and void;
b) A declaration be and is hereby issued that all contracts relating to the Digital Super Highway project awarded to entities linked to the 1 st respondent including but not limited to Nightigale Enterprises/Nightigale (EA) Limited are illegal, unconstitutional, null and void.
c) An order be and is hereby issued directing the respondents to repay back to the Universal Service Fund all monies paid to entities linked to the 1 st respondent, including but not limited to Nightigale Enterprises/Nightigale (EA) in relation to the unlawful and illegal contracts with respect to the Digital Super Highway Contracts.
d) A declaration be and is hereby issued that the 1 st respondent has grossly violated the Constitution of Kenya 2010.
e) Costs of the petition.
4. In opposition to the petition, the 1 st & 2 nd respondents filed a Replying Affidavit dated 25 th February 2025 and Further Affidavit dated 15 th May 2025, the 3 rd respondent filed a Replying Affidavit dated 17 th March 2025 and the 4 th and 5 th respondents filed Grounds of Opposition dated 14 th February 2024.
The Petitioner’s Case
5. According to the petition, the petition stems from non-compliance with the constitutional and statutory principles on leadership and integrity and the sanctity of public trust.
6. The petitions is hinged on the actions of the Communications Authority of Kenya (CAK) and the ICT Authority of Kenya for openly disregarding apparent and manifest conflict of interest in awarding various contracts to entities linked to the 1 st respondent who is the Chairperson of the Communication Authority of Kenya. The contracts are principally relate to execution and implementation of the Kenyan Government’s project known as the Digital Super Highway Project which is a cabinet approved project aiming at strengthening the country’s ICT infrastructure by increasing the network coverage across the country; reduce the cost of internet connectivity and enhance the delivery of e-government services, health, agricultural and financial services. The project is implemented and financed from the Universal Service Fund, a fund managed by the CAK, the 2 nd respondent.
7. The petitioner contends that a total of over fifteen billion Kenya Shillings will be spent for the implementation of the Digital Super Highway project which is to be done in two phases, with the first phase apportioned at Kshs. Five Billion and the second phase Kshs. Ten Billion.
8. The petitioner asserts that the responsibility of the execution of the Digital Super Highway project lies with the 2 nd respondent which has through a purported Technical Corporation Agreement, purportedly transferred functions such as sourcing, procurement and implementation of the project to the 3 rd respondent.
9. According to the Petitioner, the public is set to benefit from 100,000kms of fiber cables, 25,000 public hotspots, 1450 Digital Village Smart Hubs and Studios, 3 data centres and data protection and cyber security management all of which are expected to be set up should the project be properly and effectively implemented.
10. The petitioner avers that although the 2 nd respondent is mandated to administer the Universal Service Fund, it entered into an arrangement with the 3 rd respondent through a Deed of Transfer of Procurement Authority. Under the said arrangement, the 3 rd respondent was purportedly assigned the responsibility for facilitation of the rollout of the Optical Fiber Network Connectivity for the Digital Super Highway Project which responsibility includes the sourcing, contracting and implementation of the project. Notwithstanding the purported arrangement, the 2 nd respondent retained the critical functionalities and involvement of the project namely the financial responsibility still rested with the 2 nd respondent; it remained responsible for approval of budgets and for allocation of funds in respect of the project; it retained the powers to pay the contractors for the project and it was also part of the overall implementation of the project.
11. The petitioner asserts that the 3 rd respondent published various invitation to tender in relation to the Digital Super Highway Project which include TENDER NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public Wi-fi connectivity on a three-year framework (Framework Contract) in Lots as well as TENDER NO. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots. The tender documents were expressly clear and unambiguous on who was eligible and who was not eligible for the tender for example public employees and their close relatives, public officers and their relatives and those in conflict of interest from the tender.
12. Despite that, the petitioner reveals that the 1 st , 2 nd and 3 rd respondents caused the awarded tender to among others, entities which have a direct link to the 1 st respondent namely Nightigale Enterprises Limited which is currently known as Nightigale (EA) Limited which was awarded the following contracts; NO. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last mile and Public Wi-fi Connectivity on a three year framework (Framework Contract) in Lots; NO. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots; contract for the provision of OGN OFC Maintenance for Q1 2024-2025 (July – September) for lot 6 Contract No. 2302210 to Nightigale (EA) valued at Kshs. 17,983,440/- signed on 8 th October 2024; contract for provision of OGN OFC Maintenance for Q4 2023-2024 lot 6 Contract No. 2240177 to Nightigale (EA) valued at Kshs. 14,383, 440/- signed on 8 th July 2024; contract for provision of maintenance services for the one government network infrastructure fibre optic cable on a three year framework contract ICTA/OT/10/2022-2023 awarded to among others Nightigale Enterprises Limited signed on 5 th July 2023 and contract for the procurement of digital superhighway fiber optic cable and associated accessories (framework contracting purchaser ICTA/OT/13/2022-2023 Nightigale Enterprises 5/06/2023.
13. The petitioner contends that Nightigale Enterprises Limited is an entity directly linked to the 1 st respondent and the said company has had a lot of changes on its records at the company’s registry both in terms of its officials and its shareholding as well as to its name. In terms of the name, Nightigale Enterprise Limited has since been changed to Nightigale (EA) Limited, in terms of shareholding, the petitioner avers that the company has undergone multiple changes which contextually taken, point to an express intention of fraudulent manoeuvre aimed at benefiting from contracts with apparent conflict of interest. The daughter of the 1 st respondent, one Evelyn Nyambura Mungai was until 29 th May 2024, just before the initial contract were awarded to Nightigale (EA) Limited, a very strong majority shareholder of the company with 70% of the shareholding while one Thomas Muya Njau held a mere 10% and one Ruth Waithira Kinyanjui held a total of 20%.
14. The petitioner reveals that the said shareholding changed particularly in the period following the company’s award of the Digital Superhighway contracts. Currently, the 1 st respondent’s daughter is no longer a part of the company’s shareholders instead Ruth Waithira Kinyanjui holds 90% of the company’s shareholding. The petitioner argues that the alteration of Nightigale (EA) Limited shareholding structure to omit the 1 st respondent’s daughter only happened in the period after submission of the bids for the Digital Super Highway tender. Thus, a conclusion is drawn that the shareholding structure was engineered to conceal the real beneficial owners set to benefit following the company’s winning the tenders for the Digital Super Highway project which is the 1 st respondent through her daughter Evelyne Nyambura Wanjiru. Further, the said Ruth Waithira Kinyanjui is only a proxy of the 1 st respondent and her daughter Evelyn Nyambura Mungai. Evelyne Nyambura Mungai and Ruth Waithira Kinyanjui are not strangers to each other but close business associates/partners/proxies for instance, apart from Nightigale (EA) they also carry out business through Nightigale Construction Limited where Evelyne holds 70% and Ruth holds 15% of the shares. Despite the glaring and apparent conflict of interest, the 2 nd and 3 rd respondents proceeded to award contracts with respect to the project to Nightigale (EA) Limited, a company directly linked to the 1 st respondent. Consequently, the Kenyan public stands to immensely suffer and stands to loose billions of public funds out of the actions of the respondents. Further, the public stands to suffer from the consequences of failed implementation of the Digital Super Highway project whose intentions were for the immense benefit of the public.
The 1 st and 2 nd Respondents’ Case.
15. The affidavit was sworn by David Mugonyi, the Director General or Chief Executive Officer of the 2 nd respondent and he avers that the 1 st respondent was appointed on 1 st December 2022 as the Board Chairperson of the Communications Authority Kenya vide Gazette Notice No. 1483 of 2 nd December 2022. The deponent avers that on 11 th December 2022, the 2 nd respondent and the 3 rd respondent entered into a Memorandum of Understanding (MOU) for purposes of enhancing coordination, cooperation, collaboration and understanding between the parties in the implementation of projects and programmes under Government Digital Transformation Agenda in the context of the respective mandates of the parties. The Government Digital Transformation Agenda is a broad initiative aimed at building a digital superhighway and digitization of at least 80% of government records.
16. Further to the MOU, the deponent states that on 17 th April 2023, CA and the 3 rd respondent entered into a Technical Cooperation Agreement to facilitate the implementation of the Digital Superhighway Project. The span of the optical fiber network to be rolled out was approximately 2500 km and was estimated to cost Kshs Five Billion.
17. It was a further agreed that CA may apply not more than 3% of the costs towards project management activities subject to necessary approvals.
18. The deponent avers that the role of the 3 rd respondent involved the following key responsibilities: facilitate the development and approval of the specific Project Concept Note in line with the Public Investment Management Guidelines under the Public Finance Management act, 2012; develop a detailed project design for the rollout of the fiber infrastructure ad establishment of connectivity to the identified beneficiary institutions; develop the detailed terms of reference and specifications among other requirements necessary to facilitate sourcing or procurement processes; execute the deed of transfer of procuring responsibility under the Public Procurement and Disposal Act; undertake procurement of the project components in full compliance with the Public Procurement and Disposal Act 2015 and the attendant regulations; establish relevant committees under the Procurement Act for the implementation of the project. While the obligations of the 2 nd respondent included; allocate financial resources from the Universal Service Fund and approve the budget to meet the project cost as outlined in the agreement; make payments against delivery of agreed project milestones as identified in the contractual arrangements with the contractors under the project; facilitate the requisite internal project related approvals; transfer procurement responsibility for the main component of the project to ICTA in order to achieve efficiency and participate in overall implementation of the project as per the project governance framework indicated in the agreement. The deponent stresses that the roles of the 2 nd and 3 rd respondents were distinct, particularly in relation to procurement which was solely the responsibility of the 3 rd respondent, the 2 nd respondent had no involvement in the procurement process.
19. The deponent states that pursuant to the Deed of Transfer of Procurement Responsibility in accordance with Section 52 of the Public Procurement and Asset Disposal Act and Regulation 39 of the Public Procurement and Asset Disposal Regulations 2020, the 2 nd respondent assigned the 3 rd respondent with the procuring responsibility for the facilitation of the rollout of the optical fiber network connectivity for institutions within ministries, counties, departments and agencies with a focus on health facilities, police stations, courts and schools in unserved and undeserved areas. In order to ensure compliance with Regulation 39(2) of the Public Procurement and Asset Disposal Regulations, 2020 it was a provision that the 3 rd respondent will submit duly certified invoices, signed contracts and local purchase orders issued, inspection and acceptance reports and Milestone or Completion certificates as appropriate to facilitate payments under the Deed of Transfer.
20. The deponent states that Tender No. ICTA/OT/11/2022-2023 for the procurement of Digital Super Highway Last Mile and Public Wifi connectivity on a three year (Framework Contract) in Lots and Tender No. ICTA/OT/13/2022-2023 for the procurement of Digital Super Highway Backbone and Metro (Framework Contract) in Lots were issued using open national tendering method. He further avers that the designated address for the submission of tenders was the offices of the 3 rd respondent and it was stipulated that the tenders would be publicly opened in the presence of candidates or their duly authorized representatives who opted to attend the tender opening session at the said offices. Upon the award of tenders, the contract were executed exclusively between the 3 rd respondent and the respective contractors. The deponent stresses that at no point did the 1 st and 2 nd respondents participate in the procurement process.
21. Vide letter dated 10 th September 2024, the 2 nd respondent requested the Office of the Attorney General for an advisory opinion on conflict of interest in the procurement process of Digital Superhighway Backbone and Metro (Framework Contract) to which the Solicitor General responded and stated that by the time of submitting the award, the 1 st respondent had already tendered her resignation as Director and Shareholder of Nightigale Enterprises Limited and taken up her appointment as the 2 nd respondent’s Chairperson. From the records provided by the Business Registration Service, the 1 st respondent ceased being a director and relinquished and transferred her shares on 5 th December 2022. Further, that although conflict of interest may involve legitimate personal affiliations and associations as well as family interests, those interests must be seen or established, to have unreasonably occasioned improper influence in a person’s performance of their official duty. From the documents provided, the Solicitor General rightly concluded that the 1 st respondent never participated or took part in the procurement proceedings or participated in any decision making with regard to the procurement or award thereof as to warrant a conflict of interest. Additionally, at the time of execution of the contract between the 3 rd respondent and Nightigale Enterprises Limited, both the 1 st respondent and her daughter were not directors or shareholders of Nightigale Enterprises and further from the resignation letters to the Registrar of Companies, they have no claims against the company monetarily.
22. The deponent avers that the 2 nd respondent’s board’s approval of the procurement budget was within its statutory mandate and it did not in any way constitute an attempt to influence or distort the procurement process. As such, there is no evidence of irregularities or improper conduct that could suggest any undue influence by the 1 st and 2 nd respondents in awarding the contract. The deponent maintains that neither the 1 st or 2 nd respondents were engaged at any juncture during the procurement process, nor participated in any decision making with regard to the procurement or award thereof as to warrant a conflict of interest, consequently, they could have not exercised or exerted undue influence over the allocation of tenders to various contractors.
The 3 rd Respondent’s Case.
23. The affidavit was sworn by Stanley Mutahi Kamaguya, the Chief Executive of the 3 rd respondent and he avers that the Constitution mandates that whenever a state organ or a public entity contracts for goods and services, the same should be done in a manner that aligns with Article 227 of the Constitution. He contends that the tender was advertised on MyGov newspapers on 7 th February 2023 and uploaded on their website and the government portal (Public Procurement Information Portal) with the deadline set for 28 th February 2023. They received 75 bids in response to the advertised tender and the 3 rd respondent then appointed a committee that held an evaluation exercise. The said committee made recommendations for the award of the tender for a total of 18 firms. The firms awarded the tenders included Egypro East Africa Limited; Alternative Communication Limited, Konvergence Network Solutions limited, Adrian Kenya Limited, Quavatel Limited, Nubly Technologies Limited, Professional Digital systems Limited, Smart Cloud Africa Limited, Soulco Kenya Limited, Soliton Telmec, Visibility Technology Service Limited, Optimax Group Limited, Dynamo Solutions Limited, Baran Telecom Networks, Tech Source Point Limited, Nightigale Enterprises Limited, Com Twenty One Limited and A-Z Technologies Limited in respective orders of their lots.
24. The deponent avers that the bidding parties were fairly and equitably evaluated and due diligence conducted on all bidders that were proposed for the award. He further avers that for contract ICTA/OT/11 and 013/2022-2023, Nightigale Enterprises Limited was recommended for the award under lot 6 for Kshs. 14,794,486/- and Kshs. 54,095,430/- respectively. Further for contract ICTA/OT/011 the tender price was below the estimated market value of Kshs. 31,825,677/- as was indicated in the framework contract and that was saving the public funds. On the issue of the violation of values and principles of good governance under Article 10 of the Constitution, the deponent avers that the 3 rd respondent followed the due procedure. The 3 rd Respondent further states that equal opportunity was accorded to all that showed interest and due procedure was followed during the bidding process and only the qualified were awarded the contracts. Further the deponent states that at the time of bidding and awarding of the Digital Super Highway Project, the Chairperson of the CAK was not a named shareholder or a director of Nightigale Enterprises Limited and Nightigale (EA) Limited.
25. The deponent states that the 2 nd respondent sought an advisory opinion from the office of the 5 th respondent on the question of conflict of interest of the 1 st respondent and through a letter dated 1 st October 2024, the Attorney General recused the 1 st respondent of all the accusations of conflict of interest. Additionally, the 1 st respondent was neither a director nor a shareholder of Nightigale Limited as at 19 th June 2023, thus the 1 st respondent or her issue were not party to the management and shareholding of the company prior to the execution of the tender awarding and acceptance.
The 4 th and 5 th Respondents’ Case.
26. The respondents aver that the petition does not demonstrate any cause of action against them, sought any reliefs or shown any infractions of the constitution by them. Further, the petitioner has not disclosed why it has not availed of the statutory mechanism for dealing with its grievance which provides in the first instance that a complaint is made with the Public Procurement Oversight Authority before approaching the court. Further the petitioner has not lodged a complaint with the Ethics and Anti Corruption Commission before instituting the present proceedings rendering the same premature. Thus, if the court were to exercise first instance jurisdiction over the subject matter of the proceedings it would undermine the statutory and constitutional mandates of public institutions specifically established to investigate and provide effective remedy to the same contrary to the doctrine of separation of powers.
27. The petition was disposed of by way of written submissions.
Petitioner’s Submissions
28. The petitioner identified five issues for determination as follows:
• whether the court has jurisdiction to determine the matter;
• whether the procurement process for the government’s Digital Super Highway Project violated the constitutional principles of transparency, fairness and accountability under Article 227 of the Constitution;
• Whether the actions of the 1 st respondent amount to a conflict of interest and breach of leadership integrity as contemplated under Articles 73 and 75 of the Constitution;
• whether the ongoing implementation of contracts tainted by conflict of interest violates public finance principles under Article 210 of the Constitution and amounts to misapplication of public resources, and
• whether the petitioner’s rights and public’s interest in fair and transparent procurement processes were violated under Articles 10, 22 and 258 of the Constitution .
29. On the issue of jurisdiction, the petitioner submitted that the court has jurisdiction to determine the matters raised in the petition which concern the violation of constitutional rights, particularly the principles of fairness, transparency and accountability in the procurement process. The issues at stake are constitutional in nature and the petitioner asserted that they cannot solely be resolved by administrative bodies such as the PPOA or EACC. Thus, the petition is properly before the court.
30. On the second issue, the petitioner submitted that it is trite law that when a state organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost effective. To buttress that point reliance was placed in the case of Law Society of Kenya vs Attorney General & Another; Kenya Broadcasting Corporation (Interested Party) [2025] KEHC 3439 (KLR).
31. To that effect, Parliament enacted the Public Procurement and Asset Disposal Act, 2015 as the main statutory provision on procurement processes in Kenya and a legislative mechanism to enhance Article 227 of the Constitution. It is therefore the petitioner’s argument that the procurement process was illegal because it violated Article 227 of the Constitution on principles of transparency and fairness; it violated various sections of the Public Procurement and Disposal Act, 2015 and it violated the integrity clause under the tender documents.
32. Pursuant to the violation of Article 227 of the Constitution, the respondents facilitated the award of multiple contracts to Nightigale (EA) Limited which is directly or indirectly connected to the 1 st respondent in circumstances that concealed the true beneficial ownership of the company and evaded competitive safeguards through corporate restructuring and proxy arrangements. Reliance was placed in the case of Law Society of Kenya vs Attorney General & Another; Kenya Broadcasting Corporation (Interested Party) [2025] KEHC 3439 (KLR) where the court stated that ‘Further, it is the considered opinion of this court that the memo perpetuates a policy of discriminative exclusion in procurement of public goods and services hence does not promote principle of transparency and competitiveness in procurement of public services as provided for under Article 227(1) to ensure there is value for money . Similar reliance was placed in the case of Revital Health (Epz) Limited vs Public Procurement Oversight Authority & 6 Others Constitutional petition No. 75 of 2012 , the court stated:-
Procurement conducted outside the provisions of the Public Procurement Asset Disposal Act was not necessarily unconstitutional. Constitutionality of a procurement process is to be assessed on the basis of Article 227 of the Constitution. Article 227 provided that procurement by a state organ or public entity was to accord to a system that was fair, equitable, transparent, competitive and cost effective.
33. The petitioner further submitted that the respondents violated the said principles by awarding contracts to the 1 st respondent which created a conflict of interest and compromised the fairness and transparency of the procurement process. Additionally, the respondents failed to follow the statutory procedures laid out in the Public Procurement and Assets Disposal Act (PPADA) which further undermines the legitimacy of the process.
34. The petitioner argued that the respondents violated Section 59 of the PPADA as the 1 st respondent is the chairperson of the 2 nd respondent and she has an affiliation to Nightigale EA Limited, an entity that was awarded several contracts in relation to the Digital Super Highway project, a fact that has not been disputed by the respondents. Furthermore, the drastic corporate restructure done to Nightigale EA Limited before the award of the various tenders by the 3 rd respondent paints a glaringly bad and malevolent picture of the respondents intending to personally benefit from a project advanced as a public venture. Additionally, the respondents have alluded in their responses that the 1 st respondent need not have disclosed her direct or indirect affiliation to Nightigale EA Limited, which contradicts Section 59(3) of the Act. Accordingly, the petitioner argued that these are not mere speculations but cogent proof which indicates that the tendering process violated the law and thereby meeting the burden of proof as elucidated in the case of Peesam Limited vs Public Procurement Administrative Review Board & 2 Others; Hannaneli Suppliers Limited (Interested Party) [2025] KEHC 7277 (KLR) .
35. Pursuant to Section 83(1) of the Act, an evaluation committee may after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with the Act. The petitioner submitted that sufficient evidence has been put forth to show that the restructuring that occurred during the procurement window was clearly engineered to obscure the beneficial owner of the contracting entity and circumvent the disqualification clauses. That established that fact that the respondents were not too keen in conducting their due diligence to establish that the 1 st respondent has strong affiliate to Nightingale EA Limited thereby violating the various provisions of the PPADA.
36. The petitioner submitted that the tender documents expressly provided ineligible persons to apply for the respective tenders particularly clause 3.1 of the tender documents where it stated “Public employees and their close relatives(spouses, children, brothers, sisters, uncles and aunts) are not eligible to participate in the tenders.” It is not in dispute that the 1 st respondent held shares at Nightigale EA Limited and thereafter transferred the shares to her daughter, Evelyne Nyambura Mungai who after the entity had been awarded the contract effected the transfer of her shares to Ruth Waithira Kinyanjui her own proxy who assumed 90% ownership. Evidence of their joint business interests exist through their co-ownership of Nightigale Construction Limited.
37. On the third issue, the petitioner cited Article 73 of the Constitution which places an obligation upon the state and public officers to conduct themselves in a manner that is ethical, earns public confidence and trust and does not in any way bring disrepute to the office they occupy. Reliance was placed in the decision of the Court of Appeal in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR) where the court stated:-
We wish to reiterate, having disposed of the issue of separation of powers, that leadership and integrity are broad and majestic normative ideas. They are genius of our constitutional fabric. However, their open textured nature reveals that they were purposefully left to accrue meaning from concrete experience. Restated, whereas these concepts germinate from the ground of normativity, they grow in the milieu of the facticity of real experience. Their life blood will therefore be our experience not merely the abstract philosophy or ideology that may underlie them.
38. The petitioner asserted that the concealed beneficial inte
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