Court of Appeal declines to suspend ruling nullifying Ksh.204B Safaricom share sale
Pedestrians walk outside the Safaricom mobile phone customer care centre during the launch of its 5G internet service in the central business district of Nairobi, Kenya October 27, 2022. REUTERS
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The government has suffered another setback in its bid to
overturn the nullification of the Ksh.204.3 billion sale of its 15 per cent
stake in Safaricom to Vodacom after the Court of Appeal declined to suspend the
High Court ruling.
Appellate Court judges Luka Kiprotich Kimaru, Johnson Okello
and Kathurima M’Inoti rejected an application seeking to stay the September 15,
2026, judgment pending the hearing and determination of the government’s
intended appeal.
The judges ruled that the application had failed to meet the
required legal threshold for the orders sought.
The government, through the Office of the Attorney General,
had challenged a decision by High Court judges Francis Gikonyo, Roseline
Aburili and Tabitha Wanyama, who declared the partial divestiture of the government’s Safaricom stake unconstitutional, null and
void.
In their ruling, the three High Court judges found that the
government’s decision to sell the 15 per cent stake was a public policy matter
that required meaningful public participation before the transaction could
proceed.
The court held that neither the Cabinet nor the National
Assembly had subjected the proposed sale to adequate public participation.
It also faulted the government for failing to provide
sufficient information about the transaction, including the identity of the
intended buyer, finding that the lack of transparency undermined the
constitutional requirements of accountability and public participation.
Consequently, the court quashed agreements, approvals and
arrangements relating to the sale, merger, takeover or transfer of the shares
and ordered the 15 per cent stake to be restored to the Government of Kenya, to
be held on behalf of the people.
Following the judgment, Attorney General Dorcas Oduor and
National Treasury Cabinet Secretary John Mbadi moved to the Court of Appeal, seeking to
overturn the decision and suspend its implementation pending the determination
of their appeal.
In affidavits sworn on September 17, 2026, the two officials
argued that the Ksh.204.3 billion proceeds from the transaction were
non-refundable, while the shares had already been transferred to Vodafone Kenya
Limited.
The government also argued that an additional Ksh.40.2 billion
had been paid in lieu of future dividends.
It further maintained that restoring the government’s six
million ordinary shares without a corresponding order for the refund of the
purchase price would expose the state to financial prejudice.
The government warned that implementing the High Court orders
could be difficult or impossible to reverse, arguing that the dispute raised
issues of public interest involving fiscal planning, capital market stability,
investor confidence and the country’s external position.
It had asked the appellate court to suspend the High Court
judgment until its appeal was heard and determined, warning that failure to
grant the orders would render the appeal nugatory.

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