REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E051 OF 2026
CONSOLIDATED WITH
PETITION NO E836 OF 2025
TONY GACHOKA …………………………………………….. 1 ST PETITIONER
PROF. REDRICK ONYANGO OGOLA………………………2 ND PETITIONER
VERSUS
THE CABINET SECRETARY, THE NATIONAL TREASURY AND ECONOMIC PLANNING …………………………………….1 ST RESPONDENT
THE CABINET SECRETARY, INFORMATION, COMMUNICATION AND THE DIGITAL ECONOMY…………………………………..2 ND RESPONDENT
THE COMMUNICATIONS AUTHORITY OF KENYA…...3 RD RESPONDENT
THE COMPETITION AUTHOURITY OF KENYA………..4 TH RESPONDENT
THE HONOURABLE ATTORNEY GENERAL……………5 TH RESPONDENT
SAFARICOM PLC…………………………………………….6 TH RESPONDENT
VODACOM GROUP…………………………………………..7 TH RESPONDENT
VODAFONE KENYA LIMITED……………………………..8 TH RESPONDENT
RULING ON THE NOTICE OF MOTION DATED 26 TH JANUARY, 2026 FOR CONSERVATORY ORDERS
The application
1. Vide a Notice of motion dated 26 th January 2026 brought pursuant to Articles 22, 23 and 258 of the Constitution, supported by affidavit sworn on the even date by the 1 st petitioner, Mr. Tony Gachoka, the subsequently filed written submissions and oral highlights, the petitioners seek conservatory orders restraining the respondents, whether by themselves or any person acting under their authority from selling, transferring, offering for sale, disposing, alienating, charging, pledging, executing any agreement or completing any transaction relating to the Government of Kenya’s 15% shareholding in Safaricom PLC pending the hearing and determination of the instant application.
2. The Petitioners also seek a conservatory order restraining the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya’s shares in Safaricom PLC to the 7 th respondent or any other entity pending the hearing and determination of the petition.
3. The petitioners further seek an order compelling the 1 st , 2 nd and 6 th respondents to disclose and file in court, the full valuation reports relied upon in arriving at the price of Kshs. 34 per share; the list of all transaction advisors, valuers, legal advisors and financial advisors appointed, including their appointment letters and procurement process; any cabinet, treasury, or inter-ministerial approvals relating to the impugned transaction and any competition authority approvals or exemptions issued or applied for and any agreements, MOUs, term sheets or binding offers exchanged with the 7 th respondent.
4. The petitioners further seek for an order declaring that no disposal of government of Kenya shares in Safaricom PLC shall proceed without prior Parliamentary approval in accordance with the Constitution, the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025 and
5. An order preserving the status quo as at the date of filing of the petition with respect to the ownership, control, governance and management of Safaricom PLC and costs of the application.
6. The application is predicated on the grounds that: the intended sale involves a strategic national asset touching on telecommunications, mobile money, data sovereignty and national security; the process violates the dictates of Articles 1, 10 and 227 of the Constitution and that the respondents have invoked the Public Private Partnerships Act, 2022 unlawfully to circumvent the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025.
7. According to the petitioners, the transaction risks irreversible prejudice through loss of Government control, dilution of sovereignty and exposure of sensitive national data infrastructure and that unless the conservatory orders are issued, the petition shall be rendered nugatory.
8. In the supporting affidavit, the 1 st petitioner depones that the 6 th respondent is a strategic national asset because it carries more than half of Kenya’s mobile telecommunications connections, dominates the mobile money ecosystem and sits at the Centre of digital payments, e-commerce, credit lending and financial inclusion infrastructure in Kenya.
9. The first petitioner deposes that the Government of Kenya currently owns 35% of the shares in the 6 th respondent company, hence has significant control and strategic influence over the telecommunications and digital financial ecosystem in Kenya. He further deposes that the 1 st respondent through a proposal contained in sessional Paper No. 3 of December 2025 intends to sell 15% of the Government of Kenya’s shareholding in the 6 th respondent to the 7 th respondent, a private and foreign controlled entity.
10. It is further deponed that pursuant to the said notice, the 7 th respondent has issued notice to purchase 6,009,814,200 shares belonging to the Government of Kenya at the 6 th respondent company, valued at Kshs. 204.3 billion, which intended sale will reduce Government shareholding from 35% to 20% and consequently reduce Government Board representation to only two seats. The sale price of approximately Kshs. 34 per share is an undervalue and injurious to the public interest when compared to the prevailing and intrinsic market valuations.
11. According to the deponent, the 6 th respondent has consistently been one of the largest revenue generators for the Republic of Kenya, contributing between Kshs. 18 billion and 20 billion annually and that selling its shares at Kshs. 34 per share, as opposed to the estimated intrinsic value of Kshs. 70-80 per share exposes Kenya to a projected loss of approximately Kshs. 250 billion.
12. The petitioners urge that that the intended sale has been undertaken without meaningful public participation and that the transaction has not been subjected to any transparent, independent valuation process to establish a competitive price or fair market value in compliance with the Constitution and the applicable law.
13. They further contend that the 7 th respondent’s Kenyan subsidiary already holds 35% of the shares in the telecommunications sector and that if the impugned sale proceeds, the 7 th respondent will effectively acquire a controlling interest of 55% leaving the Government with only 20%thereby undermining Kenya’s strategic leverage over critical data infrastructure, mobile money system, competition policy and national security.
14. The petitioners believe that the impugned sale has been instigated without transparent price discovery mechanisms, without multiple bidders, without disclosure or transaction advisors, without valuation reports and without financial market or national risks analyses required for safeguarding national and data sovereignty and that it does not serve public interest and unlawfully excludes Kenyan institutional investors and retail investors.
15. The petitioners assert that unless this Court intervenes, the subject asset shall be unlawfully alienated in favour of the 7 th respondent in contravention of the Constitution and the Public Private Partnerships Act. They contend that the intended sale is contrary to Section 47 of the Public Private Partnerships Act, which requires the respondents to undertake the requisite coordinated evaluation, valuation and risk assessment.
16. The petitioners posit that that the impugned sale violates Article 227 of the Constitution as read with section 4(3) of the Public Private Partnerships Act, for refusing to apply the Public Procurement and Asset Disposal Act, 2015. Further, that the respondents have violated the principles of integrity, accountability, prudent use of public resources and ethical leadership. The respondents are also accused of erroneously relying on section 4 of the Public Private Partnership Act 2022, which was never intended to govern disposal of public assets but rather privately financed projects.
17. According to the petitioners, the concurrent application of the Public Private Partnerships Act and the Public Procurement and Asset disposal Act create constitutional mischief and undermines the safeguards by Article 227. Mr. Gachoka deposes that reducing Government shareholding from 35% to 20% eliminates veto power over major corporate decisions violating Articles 201 and 238 of the Constitution. Additionally, that the transaction contains no express safeguards on data sovereignty, localization, or protection or personal and financial data of over 30 million Kenyans, and that no national security impact assessment has been conducted.
18. Further deposition is that the statements attributed to the Cabinet Secretary proposing to establish a fund with himself as sole signatory raise grave constitutional dangers, including concentration of financial power, evasion of parliamentary oversight and collapse of accountability, contrary to Articles 206, 201 and 73 of the Constitution and the Public Finance Management Act.
The 1 st , 2 nd , 4 th and 5 th respondents’ responses to the application
19. The 1 st , 2 nd , 3 rd , 4 th and 5 th respondents opposed the application through Preliminary Objection, Grounds of Opposition and affidavits sworn by FCPA John Mbadi Ng’ongo, the holder of the 1 st respondent office.
The Preliminary Objections dated 17 th March, 2026
20. The preliminary objection is predicated upon the grounds that this court lacks jurisdiction to entertain the application because the impugned transaction has been presented before the National Assembly for approval through Order Paper No. 7 of 12 th March 2026, thereby rendering the matter, legislative process within the exclusive constitutional mandate under Articles 94 and 95 of the Constitution. Therefore, that any intervention by this court would offend the doctrine of separation of powers.
21. That the application is premature, non-justiciable and offends the doctrine of ripeness. The preliminary objection also challenges an ongoing oversight process as envisaged under Article 95(4) (c) and 5(b) of the Constitution and contends that the application therefore offends the principles set out in the case of Wanjiru Gikonyo and others v National Assembly of Kenya and 4 others [2016] eKLR.
22. According to the respondents, the impugned transaction between the 1 st respondent and the 7 th respondent is a purely commercial transaction and that the application improperly seeks to constitutionalize a commercial dispute, thereby amounting to an abuse of the court process. Reliance is placed on the decision in Omar v Attorney General & 3 others [2024] KEHC 6181 (KLR).
Grounds of opposition dated 12 th February, 2026
23. In their grounds of opposition, the 1 st , 2 nd , 4 th and 5 th respondents contend that the application is premature, speculative and hypothetical. That there is no evidence of any concluded, approved or imminent decision by the respondent to dispose of the Government of Kenya’s shareholding in Safaricom PLC. That the petitioners have also failed to satisfy the constitutional threshold for grant of conservatory orders as articulated in Munya v Kithinji & 2 others [2014] KESC 30 (KLR).
24. According to the 1 st , 2 nd , 3 rd , 4 th and 5 th respondents, no concrete or imminent constitutional violation has been demonstrated to warrant judicial intervention at the interlocutory stage. That the conservatory orders sought are final in nature, that if granted will effectively determine the substantive issued in dispute and would conclusively restrain the respondents’ lawful mandate without a full hearing of the petition.
25. The respondents contend that the orders sought are overbroad, intrusive and disproportionate and would unjustifiably fetter lawful policy formulation, intergovernmental consultations and statutory mandate vested in the respondents, contrary to public interest. The application is also said to improperly invite this Court to preempt, supervise and micromanage executive and regulatory processes that are ongoing and yet to crystallize into a ripe or justiciable constitutional dispute.
26. The 1 st , 2 nd , 4 th and 5 th respondents maintain that the petitioners have failed to demonstrate any real, imminent, or irreversible prejudice capable of being addressed through existing constitutional, statutory and regulatory safeguards. It is their position that the disclosure orders sought amount to premature fishing expedition, are unsupported and offend the principles of proportionality and procedural fairness. They maintain that the application is an abuse of the court process and urge for its dismissal with costs.
Replying Affidavit
27. In the replying affidavit sworn on 8 th April, 2026, Mr. Mbadi deposes that, the proposed divestiture is expected to generate approximately KES 204 billion through the sale of shares at KES 34 per share, representing a premium of approximately 23.6% over the six-month volume weighted average market price as at 2 nd December 2025. It is his position that the transaction is meant to among others, mobilize non-tax revenue for investment in critical national infrastructure; stimulate economic growth, preserve and optimize national investments and reduce reliance on debt.
28. It is deposed that as at the time of searing the affidavit, the transaction was pending approval by the National Assembly pursuant to Section 74 of the Privatization Act, 2025 as read together with Section 87A of the Public Finance Management Act. According to the Cabinet Secretary, the sale or disposal of Government shares in Government Linked Corporations listed on the securities exchange is anchored in the Public Finance Management framework requiring both executive and legislative approval.
29. That through the introduction of section 87A of the Public Finance Management Act, the Privatization Act, 2025 introduces a distinct and streamlined approval mechanism for the sale of Government shares, a process that ensures that such transitions are fiscally prudent and subject to Cabinet and National Assembly oversight, thereby reinforcing transparency and accountability in the management of public investments.
30. The deponent asserts that Cabinet approval had already been granted to the National Treasury to initiate the partial divestiture of the Government’s equity stake in Safaricom PLC. It is further deponed that the rationale for the divestiture includes mobilization of substantial non-tax revenue to support infrastructure projects in energy, roads, water, airports and digital transformation while reducing public debt and expanding fiscal space for development priorities.
31. According to the Cabinet Secretary, the proposed purchaser is a long-standing strategic investor in Safaricom PLC with extensive regional experience and a proven track record in capital investment, digital infrastructure, innovation and financial inclusion. Accordingly, that the increased stake would reinforce Safaricom PLC’s competitiveness and growth trajectory. He clarifies that the Government of Kenya would retain a strategic 20% shareholding together with representation at the Board level in order to safeguard national interests, ensure continuity in governance and preserve Kenya’s digital and financial innovation leadership.
32. It is deposed that the transaction includes undertakings by the investor including protection of employees, retention of Kenyan leadership in governance roles and continued support for local initiatives and foundations associated with the Company. That following Cabinet approval, a proposal for the divestiture was submitted to the National Assembly for consideration and approval in accordance with the law. According to the deponent, the requirement for both Cabinet and Parliamentary approval enhances transparency and accountability in the management of public investments.
33. Mr. Mbadi deposes that in addition to these approvals, the transaction remains subject to the Capital Markets Act and the Capital Markets (Public Offers, Listings and Disclosures) Regulations, 2023, and would further require approvals and notifications from several regulatory bodies including the Competition Authority of Kenya, the East African Competition Authority, COMESA Competition Authority, the Central Bank of Kenya, the Communications Authority of Kenya and the Nairobi Securities Exchange. He maintains that this multi-layered approval framework ensures transparency, accountability and constitutional compliance.
34. Regarding the alleged undervaluation of shares, it is deponed that Safaricom PLC is a publicly listed company on the Nairobi Securities Exchange and that its valuation is transparent, publicly available and determined by market forces. The deponent states that the six-month volume weighted average share price as at 2 nd December 2025 stood at approximately KES 27.50 per share, resulting into a market capitalization of approximately KES 1.158 trillion.
35. Further deposition is that the actual proceeds to be realised from the transaction are approximately KES 204,333,682,800 billion, based on a share price of KES 34, which represents a premium of approximately 23% over the six-month volume weighted average price. According to the deponent, the National Treasury had retained Kenya Commercial Bank Capital as its transaction advisor, which undertook an independent valuation that informed and guided the final negotiated price. The deponent further relies on International Financial Reporting Standard 13, contending that market price represents the most reliable indicator of fair value as it reflects the price at which an orderly transaction would occur between willing market participants under current market conditions.
36. The Cabinet Secretary deposes further that the Government of Kenya currently earns approximately KES 7 billion annually from the proposed 15% shareholding and that it would take approximately 30 years to realize the equivalent value of KES 204 billion through dividend accrual alone. According to him, the proceeds from the transaction would instead be deployed towards commercially viable and catalytic infrastructure projects capable of generating immediate and long-term economic returns.
37. The respondents therefore dismiss the allegations that the intended sale lacked public participation or that it was rushed, opaque, non-competitive or procedurally irregular. He reiterates that the divestiture process is anchored within the Public Finance Management framework requiring both executive and legislative approval. He further states that during the 2025/2026 budget-making process, the National Treasury expressly disclosed that privatization proceeds would form part of the Government’s revenue-raising measures. According to him, the budget-making process underwent extensive public participation conducted both by the National Treasury and the National Assembly across various counties.
38. It is further deposed that the National Assembly independently conducted public participation across more than thirty counties while considering the proposed transaction. It is his position that the process therefore fully complied with constitutional requirements on public participation, transparency and accountability.
39. With regard to the allegations that the proposed transaction would result in loss of strategic control over critical national infrastructure and expose Kenya to undue foreign influence, the concerns were misplaced and unsupported by the realities of Kenya’s economic and regulatory framework. It is deponed that the Government of Kenya has historically pursued a private sector-led economic model since the 1970s and that Safaricom PLC itself had evolved through earlier divestitures, including the sale of a 40% shareholding in 1998 and a further 25% shareholding in 2008.
40. It is contended in deposition that regulatory oversight, rather than Government shareholding, constitutes the primary mechanism for safeguarding data protection, competition, consumer rights and financial stability within the telecommunications sector. According to him, Kenya has a robust regulatory framework administered by among others the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, which adequately address the concerns raised by the petitioners.
41. It is deposed that the current divestiture forms part of broader economic reforms necessitated by fiscal constraints and increasing public debt levels, thus requiring alternative revenue-raising mechanisms. He dismissed the allegation that the transaction excludes local investors and does not serve the best interests of the Kenyan public, and states that the contention is based on a misunderstanding of the nature of listed securities and the objectives of the transaction.
42. Further deposition is that Safaricom PLC shares are publicly listed and freely tradable on the Nairobi Securities Exchange, with approximately 25% of the Company’s shares already held by retail and institutional investors. According to him, shares in a listed company are freely transferable and the concept of pre-emptive rights does not apply. He further states that the proposed transaction enables the National Treasury to secure a premium price while ensuring business continuity through an existing strategic investor with a proven record in the growth and success of Safaricom PLC.
43. It is maintained that the transaction is intended to achieve fiscal sustainability, stimulate economic growth and reduce public debt. That the National Treasury acted within its constitutional and statutory mandate under Article 225 of the Constitution and Sections 11 and 12 of the Public Finance Management Act in mobilizing resources, managing public finances and promoting economic policies that facilitate national development. According to him, strategic divestitures have been identified by the National Treasury as a tool for addressing Government debt levels, budget deficits and the need for economic stimulation through increased investment.
44. Mr. Mbadi deposes that unlike taxation, privatization does not diminish private sector wealth but instead enhances investment, increases aggregate demand and broadens the revenue base in the long term. It is further his position that the transaction enables the Government to realize optimal value through a negotiated premium price while eliminating settlement risk given the purchaser’s demonstrated financial capacity and experience in similar transactions.
45. Further deposition is that part of the transaction structure includes an upfront payment in lieu of future dividends, thereby enabling the Government to realize immediate value from its residual shareholding. The transaction, it is urged, would therefore enhance Kenya’s competitiveness as an investment destination by strengthening capital markets, increasing liquidity and reinforcing investor confidence in the economy.
46. Mr. Mbadi dismisses the petitioners’ allegations that he has violated Article 10 of the Constitution, and asserts that the claim is unsubstantiated and insists that the National Treasury, in undertaking the divestiture programme, was acting in the discharge of its constitutional and statutory mandate under Article 225 of the Constitution read with sections 11 and 12 of the Public Finance Management Act.
47. Further depositions outline the mandate of the National Treasury, including formulation and monitoring of macro-economic policies, management of public debt and financial obligations, promotion of economic and financial policies and mobilization of domestic and external resources for Government programmes. He reiterates that the impugned transaction was undertaken pursuant to a clear statutory framework under Section 87A of the Public Finance Management Act, which requires prior Cabinet approval, approval by resolution of the National Assembly and submission of a detailed explanatory memorandum outlining the scope and benefits of the proposed divestiture.
48. He further states that the statutory process obligates the National Assembly to either approve or reject the proposal within prescribed timelines, thereby ensuring oversight and accountability in the disposal of public assets. According to him, the statutory framework incorporates principles of transparency, accountability and public participation consistent with Article 10 of the Constitution and that the National Treasury had complied with all legal and procedural requirements in undertaking the transaction.
49. Additionally, it is averred that the shares subject to the divestiture are legally held by the Cabinet Secretary to the National Treasury pursuant to the provisions of the Cabinet Secretary to the Treasury (Incorporation) Act. He denies allegations that the transaction had not been publicized to the required constitutional standard, and maintains that the transaction complied with the Capital Markets (Takeovers and Mergers) Regulations requiring public disclosure of material information.
50. The deponent states that a public notice was duly issued on 4 th December in two English language newspapers of national circulation disclosing all material particulars including the identity of the offeror, the offeree company, the nature of the transaction, the number of shares involved and the terms and conditions of the proposed acquisition. He maintains that the said disclosures satisfied all legal requirements relating to transparency, public notice and accountability.
51. He denies allegations that Articles 201 and 43 of the Constitution have been violated and reiterates that Safaricom PLC shares are traded in an open, transparent and regulated market where prices are determined by prevailing market forces. He restates that the negotiated price of KES 34 per share represented a premium of approximately 23% over the prevailing market price and therefore reflected fair market value and prudent financial management consistent with Article 201(d) of the Constitution.
52. Mr. Mbadi denies the allegations that the National Treasury failed to provide comprehensive information in violation of Article 35(3) of the Constitution, stating that a comprehensive proposal was prepared pursuant to Section 74 of the Privatization Act, 2025 and Section 87A of the Public Finance Management Act, including an independent valuation report prepared by a duly appointed transaction advisor. According to him, the proposal was submitted to both Cabinet and the National Assembly for consideration and approval.
53. The deponent further states that no request for additional information or particulars was made by the petitioners and that they did not participate in the public participation processes undertaken by the National Treasury and the National Assembly. He avers that the National Treasury maintains detailed records evidencing the public participation conducted across the country. He also detests allegations that the transaction violated Article 238 of the Constitution or that a national security impact assessment had not been undertaken. According to him, Safaricom PLC is a private limited liability company and that the Government of Kenya does not exercise operational control over its day-to-day affairs. That the Government’s role is limited to shareholding and board representation and does not extend to management or operational decision-making.
54. According to the deponent, national security considerations in sectors such as telecommunications and financial services are addressed through statutory and regulatory frameworks rather than through Government shareholding. That the issues relating to data protection, telecommunications, financial services and competition are regulated by competent statutory bodies including the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, together with relevant regional and international regulators. He adds that from a policy perspective, it is desirable for commercial entities such as telecommunications companies to operate independently of Government control in order to promote efficiency, competition and effective regulatory oversight. He maintains that Government’s proper role is policy formulation and regulation rather than participation in commercial operations.
55. Lastly, the deponent avers that the National Treasury and the proposed investor had agreed on various undertakings aimed at safeguarding national interests and ensuring continuity of the Company’s operations. These undertakings include among other commitments, that no employee redundancies would be declared other than in the ordinary course of business; continued support for the Safaricom Foundation and M-Pesa Foundation consultation with the Government before any expansion outside Kenya excluding existing operations. He urges for the dismissal of the application,
The 3 rd respondent’s response
56. The 3 rd respondent opposed the application through a preliminary objection and replying affidavit sworn by David Mugonyi. The Preliminary objection dated 19 th March, 2026 is predicated upon grounds that the court lacks jurisdiction to entertain and determine the issues raised in the application, because the issues fall within the constitutional mandate of the National Assembly as provided under Article 95 and guided by the principles under Articles 10 and 201 of the Constitution.
57. That the application offends the doctrine of separation of powers because the petitioner is inviting this court to interfere with the statutory functions of the National Assembly contrary to the provisions of section 74 of the Privatization Act 2025 read together with section 87A of the Public Finance Management Act, Cap 412A.
58. That the petitioners have f
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E051 OF 2026
CONSOLIDATED WITH
PETITION NO E836 OF 2025
TONY GACHOKA …………………………………………….. 1 ST PETITIONER
PROF. REDRICK ONYANGO OGOLA………………………2 ND PETITIONER
VERSUS
THE CABINET SECRETARY, THE NATIONAL TREASURY AND ECONOMIC PLANNING …………………………………….1 ST RESPONDENT
THE CABINET SECRETARY, INFORMATION, COMMUNICATION AND THE DIGITAL ECONOMY…………………………………..2 ND RESPONDENT
THE COMMUNICATIONS AUTHORITY OF KENYA…...3 RD RESPONDENT
THE COMPETITION AUTHOURITY OF KENYA………..4 TH RESPONDENT
THE HONOURABLE ATTORNEY GENERAL……………5 TH RESPONDENT
SAFARICOM PLC…………………………………………….6 TH RESPONDENT
VODACOM GROUP…………………………………………..7 TH RESPONDENT
VODAFONE KENYA LIMITED……………………………..8 TH RESPONDENT
RULING ON THE NOTICE OF MOTION DATED 26 TH JANUARY, 2026 FOR CONSERVATORY ORDERS
The application
1. Vide a Notice of motion dated 26 th January 2026 brought pursuant to Articles 22, 23 and 258 of the Constitution, supported by affidavit sworn on the even date by the 1 st petitioner, Mr. Tony Gachoka, the subsequently filed written submissions and oral highlights, the petitioners seek conservatory orders restraining the respondents, whether by themselves or any person acting under their authority from selling, transferring, offering for sale, disposing, alienating, charging, pledging, executing any agreement or completing any transaction relating to the Government of Kenya’s 15% shareholding in Safaricom PLC pending the hearing and determination of the instant application.
2. The Petitioners also seek a conservatory order restraining the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya’s shares in Safaricom PLC to the 7 th respondent or any other entity pending the hearing and determination of the petition.
3. The petitioners further seek an order compelling the 1 st , 2 nd and 6 th respondents to disclose and file in court, the full valuation reports relied upon in arriving at the price of Kshs. 34 per share; the list of all transaction advisors, valuers, legal advisors and financial advisors appointed, including their appointment letters and procurement process; any cabinet, treasury, or inter-ministerial approvals relating to the impugned transaction and any competition authority approvals or exemptions issued or applied for and any agreements, MOUs, term sheets or binding offers exchanged with the 7 th respondent.
4. The petitioners further seek for an order declaring that no disposal of government of Kenya shares in Safaricom PLC shall proceed without prior Parliamentary approval in accordance with the Constitution, the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025 and
5. An order preserving the status quo as at the date of filing of the petition with respect to the ownership, control, governance and management of Safaricom PLC and costs of the application.
6. The application is predicated on the grounds that: the intended sale involves a strategic national asset touching on telecommunications, mobile money, data sovereignty and national security; the process violates the dictates of Articles 1, 10 and 227 of the Constitution and that the respondents have invoked the Public Private Partnerships Act, 2022 unlawfully to circumvent the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025.
7. According to the petitioners, the transaction risks irreversible prejudice through loss of Government control, dilution of sovereignty and exposure of sensitive national data infrastructure and that unless the conservatory orders are issued, the petition shall be rendered nugatory.
8. In the supporting affidavit, the 1 st petitioner depones that the 6 th respondent is a strategic national asset because it carries more than half of Kenya’s mobile telecommunications connections, dominates the mobile money ecosystem and sits at the Centre of digital payments, e-commerce, credit lending and financial inclusion infrastructure in Kenya.
9. The first petitioner deposes that the Government of Kenya currently owns 35% of the shares in the 6 th respondent company, hence has significant control and strategic influence over the telecommunications and digital financial ecosystem in Kenya. He further deposes that the 1 st respondent through a proposal contained in sessional Paper No. 3 of December 2025 intends to sell 15% of the Government of Kenya’s shareholding in the 6 th respondent to the 7 th respondent, a private and foreign controlled entity.
10. It is further deponed that pursuant to the said notice, the 7 th respondent has issued notice to purchase 6,009,814,200 shares belonging to the Government of Kenya at the 6 th respondent company, valued at Kshs. 204.3 billion, which intended sale will reduce Government shareholding from 35% to 20% and consequently reduce Government Board representation to only two seats. The sale price of approximately Kshs. 34 per share is an undervalue and injurious to the public interest when compared to the prevailing and intrinsic market valuations.
11. According to the deponent, the 6 th respondent has consistently been one of the largest revenue generators for the Republic of Kenya, contributing between Kshs. 18 billion and 20 billion annually and that selling its shares at Kshs. 34 per share, as opposed to the estimated intrinsic value of Kshs. 70-80 per share exposes Kenya to a projected loss of approximately Kshs. 250 billion.
12. The petitioners urge that that the intended sale has been undertaken without meaningful public participation and that the transaction has not been subjected to any transparent, independent valuation process to establish a competitive price or fair market value in compliance with the Constitution and the applicable law.
13. They further contend that the 7 th respondent’s Kenyan subsidiary already holds 35% of the shares in the telecommunications sector and that if the impugned sale proceeds, the 7 th respondent will effectively acquire a controlling interest of 55% leaving the Government with only 20%thereby undermining Kenya’s strategic leverage over critical data infrastructure, mobile money system, competition policy and national security.
14. The petitioners believe that the impugned sale has been instigated without transparent price discovery mechanisms, without multiple bidders, without disclosure or transaction advisors, without valuation reports and without financial market or national risks analyses required for safeguarding national and data sovereignty and that it does not serve public interest and unlawfully excludes Kenyan institutional investors and retail investors.
15. The petitioners assert that unless this Court intervenes, the subject asset shall be unlawfully alienated in favour of the 7 th respondent in contravention of the Constitution and the Public Private Partnerships Act. They contend that the intended sale is contrary to Section 47 of the Public Private Partnerships Act, which requires the respondents to undertake the requisite coordinated evaluation, valuation and risk assessment.
16. The petitioners posit that that the impugned sale violates Article 227 of the Constitution as read with section 4(3) of the Public Private Partnerships Act, for refusing to apply the Public Procurement and Asset Disposal Act, 2015. Further, that the respondents have violated the principles of integrity, accountability, prudent use of public resources and ethical leadership. The respondents are also accused of erroneously relying on section 4 of the Public Private Partnership Act 2022, which was never intended to govern disposal of public assets but rather privately financed projects.
17. According to the petitioners, the concurrent application of the Public Private Partnerships Act and the Public Procurement and Asset disposal Act create constitutional mischief and undermines the safeguards by Article 227. Mr. Gachoka deposes that reducing Government shareholding from 35% to 20% eliminates veto power over major corporate decisions violating Articles 201 and 238 of the Constitution. Additionally, that the transaction contains no express safeguards on data sovereignty, localization, or protection or personal and financial data of over 30 million Kenyans, and that no national security impact assessment has been conducted.
18. Further deposition is that the statements attributed to the Cabinet Secretary proposing to establish a fund with himself as sole signatory raise grave constitutional dangers, including concentration of financial power, evasion of parliamentary oversight and collapse of accountability, contrary to Articles 206, 201 and 73 of the Constitution and the Public Finance Management Act.
The 1 st , 2 nd , 4 th and 5 th respondents’ responses to the application
19. The 1 st , 2 nd , 3 rd , 4 th and 5 th respondents opposed the application through Preliminary Objection, Grounds of Opposition and affidavits sworn by FCPA John Mbadi Ng’ongo, the holder of the 1 st respondent office.
The Preliminary Objections dated 17 th March, 2026
20. The preliminary objection is predicated upon the grounds that this court lacks jurisdiction to entertain the application because the impugned transaction has been presented before the National Assembly for approval through Order Paper No. 7 of 12 th March 2026, thereby rendering the matter, legislative process within the exclusive constitutional mandate under Articles 94 and 95 of the Constitution. Therefore, that any intervention by this court would offend the doctrine of separation of powers.
21. That the application is premature, non-justiciable and offends the doctrine of ripeness. The preliminary objection also challenges an ongoing oversight process as envisaged under Article 95(4) (c) and 5(b) of the Constitution and contends that the application therefore offends the principles set out in the case of Wanjiru Gikonyo and others v National Assembly of Kenya and 4 others [2016] eKLR.
22. According to the respondents, the impugned transaction between the 1 st respondent and the 7 th respondent is a purely commercial transaction and that the application improperly seeks to constitutionalize a commercial dispute, thereby amounting to an abuse of the court process. Reliance is placed on the decision in Omar v Attorney General & 3 others [2024] KEHC 6181 (KLR).
Grounds of opposition dated 12 th February, 2026
23. In their grounds of opposition, the 1 st , 2 nd , 4 th and 5 th respondents contend that the application is premature, speculative and hypothetical. That there is no evidence of any concluded, approved or imminent decision by the respondent to dispose of the Government of Kenya’s shareholding in Safaricom PLC. That the petitioners have also failed to satisfy the constitutional threshold for grant of conservatory orders as articulated in Munya v Kithinji & 2 others [2014] KESC 30 (KLR).
24. According to the 1 st , 2 nd , 3 rd , 4 th and 5 th respondents, no concrete or imminent constitutional violation has been demonstrated to warrant judicial intervention at the interlocutory stage. That the conservatory orders sought are final in nature, that if granted will effectively determine the substantive issued in dispute and would conclusively restrain the respondents’ lawful mandate without a full hearing of the petition.
25. The respondents contend that the orders sought are overbroad, intrusive and disproportionate and would unjustifiably fetter lawful policy formulation, intergovernmental consultations and statutory mandate vested in the respondents, contrary to public interest. The application is also said to improperly invite this Court to preempt, supervise and micromanage executive and regulatory processes that are ongoing and yet to crystallize into a ripe or justiciable constitutional dispute.
26. The 1 st , 2 nd , 4 th and 5 th respondents maintain that the petitioners have failed to demonstrate any real, imminent, or irreversible prejudice capable of being addressed through existing constitutional, statutory and regulatory safeguards. It is their position that the disclosure orders sought amount to premature fishing expedition, are unsupported and offend the principles of proportionality and procedural fairness. They maintain that the application is an abuse of the court process and urge for its dismissal with costs.
Replying Affidavit
27. In the replying affidavit sworn on 8 th April, 2026, Mr. Mbadi deposes that, the proposed divestiture is expected to generate approximately KES 204 billion through the sale of shares at KES 34 per share, representing a premium of approximately 23.6% over the six-month volume weighted average market price as at 2 nd December 2025. It is his position that the transaction is meant to among others, mobilize non-tax revenue for investment in critical national infrastructure; stimulate economic growth, preserve and optimize national investments and reduce reliance on debt.
28. It is deposed that as at the time of searing the affidavit, the transaction was pending approval by the National Assembly pursuant to Section 74 of the Privatization Act, 2025 as read together with Section 87A of the Public Finance Management Act. According to the Cabinet Secretary, the sale or disposal of Government shares in Government Linked Corporations listed on the securities exchange is anchored in the Public Finance Management framework requiring both executive and legislative approval.
29. That through the introduction of section 87A of the Public Finance Management Act, the Privatization Act, 2025 introduces a distinct and streamlined approval mechanism for the sale of Government shares, a process that ensures that such transitions are fiscally prudent and subject to Cabinet and National Assembly oversight, thereby reinforcing transparency and accountability in the management of public investments.
30. The deponent asserts that Cabinet approval had already been granted to the National Treasury to initiate the partial divestiture of the Government’s equity stake in Safaricom PLC. It is further deponed that the rationale for the divestiture includes mobilization of substantial non-tax revenue to support infrastructure projects in energy, roads, water, airports and digital transformation while reducing public debt and expanding fiscal space for development priorities.
31. According to the Cabinet Secretary, the proposed purchaser is a long-standing strategic investor in Safaricom PLC with extensive regional experience and a proven track record in capital investment, digital infrastructure, innovation and financial inclusion. Accordingly, that the increased stake would reinforce Safaricom PLC’s competitiveness and growth trajectory. He clarifies that the Government of Kenya would retain a strategic 20% shareholding together with representation at the Board level in order to safeguard national interests, ensure continuity in governance and preserve Kenya’s digital and financial innovation leadership.
32. It is deposed that the transaction includes undertakings by the investor including protection of employees, retention of Kenyan leadership in governance roles and continued support for local initiatives and foundations associated with the Company. That following Cabinet approval, a proposal for the divestiture was submitted to the National Assembly for consideration and approval in accordance with the law. According to the deponent, the requirement for both Cabinet and Parliamentary approval enhances transparency and accountability in the management of public investments.
33. Mr. Mbadi deposes that in addition to these approvals, the transaction remains subject to the Capital Markets Act and the Capital Markets (Public Offers, Listings and Disclosures) Regulations, 2023, and would further require approvals and notifications from several regulatory bodies including the Competition Authority of Kenya, the East African Competition Authority, COMESA Competition Authority, the Central Bank of Kenya, the Communications Authority of Kenya and the Nairobi Securities Exchange. He maintains that this multi-layered approval framework ensures transparency, accountability and constitutional compliance.
34. Regarding the alleged undervaluation of shares, it is deponed that Safaricom PLC is a publicly listed company on the Nairobi Securities Exchange and that its valuation is transparent, publicly available and determined by market forces. The deponent states that the six-month volume weighted average share price as at 2 nd December 2025 stood at approximately KES 27.50 per share, resulting into a market capitalization of approximately KES 1.158 trillion.
35. Further deposition is that the actual proceeds to be realised from the transaction are approximately KES 204,333,682,800 billion, based on a share price of KES 34, which represents a premium of approximately 23% over the six-month volume weighted average price. According to the deponent, the National Treasury had retained Kenya Commercial Bank Capital as its transaction advisor, which undertook an independent valuation that informed and guided the final negotiated price. The deponent further relies on International Financial Reporting Standard 13, contending that market price represents the most reliable indicator of fair value as it reflects the price at which an orderly transaction would occur between willing market participants under current market conditions.
36. The Cabinet Secretary deposes further that the Government of Kenya currently earns approximately KES 7 billion annually from the proposed 15% shareholding and that it would take approximately 30 years to realize the equivalent value of KES 204 billion through dividend accrual alone. According to him, the proceeds from the transaction would instead be deployed towards commercially viable and catalytic infrastructure projects capable of generating immediate and long-term economic returns.
37. The respondents therefore dismiss the allegations that the intended sale lacked public participation or that it was rushed, opaque, non-competitive or procedurally irregular. He reiterates that the divestiture process is anchored within the Public Finance Management framework requiring both executive and legislative approval. He further states that during the 2025/2026 budget-making process, the National Treasury expressly disclosed that privatization proceeds would form part of the Government’s revenue-raising measures. According to him, the budget-making process underwent extensive public participation conducted both by the National Treasury and the National Assembly across various counties.
38. It is further deposed that the National Assembly independently conducted public participation across more than thirty counties while considering the proposed transaction. It is his position that the process therefore fully complied with constitutional requirements on public participation, transparency and accountability.
39. With regard to the allegations that the proposed transaction would result in loss of strategic control over critical national infrastructure and expose Kenya to undue foreign influence, the concerns were misplaced and unsupported by the realities of Kenya’s economic and regulatory framework. It is deponed that the Government of Kenya has historically pursued a private sector-led economic model since the 1970s and that Safaricom PLC itself had evolved through earlier divestitures, including the sale of a 40% shareholding in 1998 and a further 25% shareholding in 2008.
40. It is contended in deposition that regulatory oversight, rather than Government shareholding, constitutes the primary mechanism for safeguarding data protection, competition, consumer rights and financial stability within the telecommunications sector. According to him, Kenya has a robust regulatory framework administered by among others the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, which adequately address the concerns raised by the petitioners.
41. It is deposed that the current divestiture forms part of broader economic reforms necessitated by fiscal constraints and increasing public debt levels, thus requiring alternative revenue-raising mechanisms. He dismissed the allegation that the transaction excludes local investors and does not serve the best interests of the Kenyan public, and states that the contention is based on a misunderstanding of the nature of listed securities and the objectives of the transaction.
42. Further deposition is that Safaricom PLC shares are publicly listed and freely tradable on the Nairobi Securities Exchange, with approximately 25% of the Company’s shares already held by retail and institutional investors. According to him, shares in a listed company are freely transferable and the concept of pre-emptive rights does not apply. He further states that the proposed transaction enables the National Treasury to secure a premium price while ensuring business continuity through an existing strategic investor with a proven record in the growth and success of Safaricom PLC.
43. It is maintained that the transaction is intended to achieve fiscal sustainability, stimulate economic growth and reduce public debt. That the National Treasury acted within its constitutional and statutory mandate under Article 225 of the Constitution and Sections 11 and 12 of the Public Finance Management Act in mobilizing resources, managing public finances and promoting economic policies that facilitate national development. According to him, strategic divestitures have been identified by the National Treasury as a tool for addressing Government debt levels, budget deficits and the need for economic stimulation through increased investment.
44. Mr. Mbadi deposes that unlike taxation, privatization does not diminish private sector wealth but instead enhances investment, increases aggregate demand and broadens the revenue base in the long term. It is further his position that the transaction enables the Government to realize optimal value through a negotiated premium price while eliminating settlement risk given the purchaser’s demonstrated financial capacity and experience in similar transactions.
45. Further deposition is that part of the transaction structure includes an upfront payment in lieu of future dividends, thereby enabling the Government to realize immediate value from its residual shareholding. The transaction, it is urged, would therefore enhance Kenya’s competitiveness as an investment destination by strengthening capital markets, increasing liquidity and reinforcing investor confidence in the economy.
46. Mr. Mbadi dismisses the petitioners’ allegations that he has violated Article 10 of the Constitution, and asserts that the claim is unsubstantiated and insists that the National Treasury, in undertaking the divestiture programme, was acting in the discharge of its constitutional and statutory mandate under Article 225 of the Constitution read with sections 11 and 12 of the Public Finance Management Act.
47. Further depositions outline the mandate of the National Treasury, including formulation and monitoring of macro-economic policies, management of public debt and financial obligations, promotion of economic and financial policies and mobilization of domestic and external resources for Government programmes. He reiterates that the impugned transaction was undertaken pursuant to a clear statutory framework under Section 87A of the Public Finance Management Act, which requires prior Cabinet approval, approval by resolution of the National Assembly and submission of a detailed explanatory memorandum outlining the scope and benefits of the proposed divestiture.
48. He further states that the statutory process obligates the National Assembly to either approve or reject the proposal within prescribed timelines, thereby ensuring oversight and accountability in the disposal of public assets. According to him, the statutory framework incorporates principles of transparency, accountability and public participation consistent with Article 10 of the Constitution and that the National Treasury had complied with all legal and procedural requirements in undertaking the transaction.
49. Additionally, it is averred that the shares subject to the divestiture are legally held by the Cabinet Secretary to the National Treasury pursuant to the provisions of the Cabinet Secretary to the Treasury (Incorporation) Act. He denies allegations that the transaction had not been publicized to the required constitutional standard, and maintains that the transaction complied with the Capital Markets (Takeovers and Mergers) Regulations requiring public disclosure of material information.
50. The deponent states that a public notice was duly issued on 4 th December in two English language newspapers of national circulation disclosing all material particulars including the identity of the offeror, the offeree company, the nature of the transaction, the number of shares involved and the terms and conditions of the proposed acquisition. He maintains that the said disclosures satisfied all legal requirements relating to transparency, public notice and accountability.
51. He denies allegations that Articles 201 and 43 of the Constitution have been violated and reiterates that Safaricom PLC shares are traded in an open, transparent and regulated market where prices are determined by prevailing market forces. He restates that the negotiated price of KES 34 per share represented a premium of approximately 23% over the prevailing market price and therefore reflected fair market value and prudent financial management consistent with Article 201(d) of the Constitution.
52. Mr. Mbadi denies the allegations that the National Treasury failed to provide comprehensive information in violation of Article 35(3) of the Constitution, stating that a comprehensive proposal was prepared pursuant to Section 74 of the Privatization Act, 2025 and Section 87A of the Public Finance Management Act, including an independent valuation report prepared by a duly appointed transaction advisor. According to him, the proposal was submitted to both Cabinet and the National Assembly for consideration and approval.
53. The deponent further states that no request for additional information or particulars was made by the petitioners and that they did not participate in the public participation processes undertaken by the National Treasury and the National Assembly. He avers that the National Treasury maintains detailed records evidencing the public participation conducted across the country. He also detests allegations that the transaction violated Article 238 of the Constitution or that a national security impact assessment had not been undertaken. According to him, Safaricom PLC is a private limited liability company and that the Government of Kenya does not exercise operational control over its day-to-day affairs. That the Government’s role is limited to shareholding and board representation and does not extend to management or operational decision-making.
54. According to the deponent, national security considerations in sectors such as telecommunications and financial services are addressed through statutory and regulatory frameworks rather than through Government shareholding. That the issues relating to data protection, telecommunications, financial services and competition are regulated by competent statutory bodies including the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, together with relevant regional and international regulators. He adds that from a policy perspective, it is desirable for commercial entities such as telecommunications companies to operate independently of Government control in order to promote efficiency, competition and effective regulatory oversight. He maintains that Government’s proper role is policy formulation and regulation rather than participation in commercial operations.
55. Lastly, the deponent avers that the National Treasury and the proposed investor had agreed on various undertakings aimed at safeguarding national interests and ensuring continuity of the Company’s operations. These undertakings include among other commitments, that no employee redundancies would be declared other than in the ordinary course of business; continued support for the Safaricom Foundation and M-Pesa Foundation consultation with the Government before any expansion outside Kenya excluding existing operations. He urges for the dismissal of the application,
The 3 rd respondent’s response
56. The 3 rd respondent opposed the application through a preliminary objection and replying affidavit sworn by David Mugonyi. The Preliminary objection dated 19 th March, 2026 is predicated upon grounds that the court lacks jurisdiction to entertain and determine the issues raised in the application, because the issues fall within the constitutional mandate of the National Assembly as provided under Article 95 and guided by the principles under Articles 10 and 201 of the Constitution.
57. That the application offends the doctrine of separation of powers because the petitioner is inviting this court to interfere with the statutory functions of the National Assembly contrary to the provisions of section 74 of the Privatization Act 2025 read together with section 87A of the Public Finance Management Act, Cap 412A.
58. That the petitioners have f
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