Court declines to lift orders blocking Safaricom sale as Vodafone loses bid to exit case

Parliament approved government plans to sell 15 per cent stake in Safaricom. [File, Standard]

President William Ruto’s administration has suffered a major blow after the High Court declined to lift orders barring it from selling a 15 per cent stake in Safaricom valued at over Sh205 billion. 

The ruling, delivered by a three-judge bench of the High Court comprising Justices Francis Gikonyo, Roselyne Aburili and Tabitha Ouya, also dismissed Vodafone and its subsidiary Vodacom's attempt to have their names out of ongoing petitions challenging the sales.

The bench issued three separate rulings that collectively halted the planned divestiture and set the stage for a full-blown constitutional hearing that will scrutinise the legality of the government's proposed sale of its Safaricom shares.

Justice Abuliri, reading the ruling on conservatory orders, said the petitions raised weighty constitutional questions that could not be summarily dismissed at this preliminary stage and directed that the interim orders remain in place until three petitions challenging the legality of the sale are heard and determined.   

"The shares sought to be divested are not private holdings in the ordinary commercial sense. They constitute public assets held by the state on behalf of the people, the Republic of Kenya and, for that reason alone, the process surrounding their disposal inevitably attracts constitutional considerations relating to transparency, accountability, good management of public resources and public participation principles," she ruled.

The judge rejected the government's argument that the transaction was a purely commercial matter beyond constitutional scrutiny, and expressed concern that the petitioners' claims, including that the shares were undervalued by over Sh250 billion, could not be dismissed as frivolous.

"Whether those fears are eventually justified is a matter that can only be conclusively determined upon the production and testing of evidence at a substantive hearing," Justice Abuliri said.

On the government's argument that Parliamentary approval had rendered the matter moot, the court was unequivocal.

"The doctrine of separation of powers does not mean that courts must stand aside whenever constitutional questions arise from decisions taken by Parliament or the Executive. The Constitution itself entrusts this Court with the responsibility of ensuring that all state organs act within constitutional limits," the bench held.

The court was also unconvinced that a reversal of the transaction, should the petition succeed, would adequately remedy any harm.

"In a sector touching communications, financial transactions as well as personal data of millions of Kenyans, this Court cannot lightly assume that a reversal at a later date, if the petition were to be found to be meritorious, would sufficiently restore the position or cure any constitutional injury that may ultimately be established," the judges warned.

The court accordingly ordered that all respondents are restrained from proceeding with the sale, transfer or alienation of the government's 15 percent shareholding in Safaricom PLC To Vodafone or any other entity or person pending the hearing and determination of the petition.

 In a separate ruling, Judge Gikonyo dismissed an application by the seventh respondent Vodafone and to have its name struck out of the petitions on grounds that the petitioners had not obtained leave to serve it outside Kenya's jurisdiction.

Justice Gikonyo found that Vodafone had been informed of the petition by its subsidiary Vodacom and had filed a notice of appointment and had actively participated in the proceedings.

"The objective of serving has been met. Striking out the name of a necessary party such as this one, in a petition which seeks constitutional relief founded on alleged violations of rights, the Constitution and statute law in the proposed sale of the shares in question, defeats the whole idea of effective constitutional review," he ruled.

The court also declined to dismiss its jurisdiction to hear and determine the petitions, ordering that Vodafone be served formally through its official email address within 14 days and file its response to the petition within the same period.

Justice Tabitha Ouya dismissed applications by former Nairobi Governor Mike Mbuvi Sonko and former Principal Secretary Irungu Nyakera to be enjoined in the petitions as interested parties.

The petitions were filed by Paul Maina Mugo, Fred Ogolla and Tom Gachoka.

The case will now proceed to a full substantive hearing on June 29,2026, with the court directing that the petition be fast-tracked.