https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1218

Cabinet Secretary, National Treasury and Economic Planning & 5 others v Gachoka & 9 others (Civil Application E261 of 2026) [2026] KECA 1218 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1218 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E261 of 2026 PO Kiage, LA Achode & AO Muchelule, JJA June 26, 2026 Between The Cabinet Secretary, National Treasury and Economic Planning 1st Applicant The Cabinet Secretary, Information, Communication & Digital Economy 2nd Applicant The Honourable Attorney General 3rd Applicant Ministry Of National Treasury & Economic Planning 4th Applicant Ministry Of Information, Communications & The Digital Economy 5th Applicant The Privatisation Commission 6th Applicant and Tony Gachoka 1st Respondent Prof. Frederick Onyango Ogola 2nd Respondent Samuel Kahara Macharia 3rd Respondent Paul Maina Mugo 4th Respondent Communications Authority Of Kenya 5th Respondent The Competition Authority Of Kenya 6th Respondent Safaricom Plc 7th Respondent Vodacom Group 8th Respondent Vodafone Kenya Limited 9th Respondent Vodafone Group PLC 10th Respondent (Being an application for stay of the Ruling and Order High Court of Kenya at Nairobi (Gikonyo, Aburili, & Ouya, JJ.) dated 18th May 2026 in HC Petition No. E051 of 2026 Consolidated with Petition Nos. E836 & E831 of 2025) Ruling 1.By the motion dated 22nd May 2026 brought under Rule 5(2)(b) of the Rules of this Court, and citing extreme urgency, the above- named applicants pray that pending the hearing and determination of an intended appeal, “there be a stay of operation, implementation and enforcement of the conservative order granted by the High Court at paragraph 227(a) of the ruling dated and delivered on 18th May 2026.” The grounds on which the application is founded appear on its face as;“i)The High Court, by its ruling delivered on 18th May 2026, granted a conservatory order at paragraph 227(a) restraining all the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya's 15% shareholding in Safaricom PLC pending the hearing and determination of the Petition.ii.The Applicants are dissatisfied with the whole of the said ruling and order and have lodged a Notice of Appeal and prepared a Memorandum of Appeal raising serious, bona fide and arguable grounds.ii.The intended appeal is arguable, inter alia, on whether the High Court misapplied the test for conservatory orders; whether the Court failed to properly evaluate the Applicants' evidence of a still-conditional statutory and regulatory process; whether the Court fell into internal inconsistency by simultaneously finding that no contract had been executed and that the substratum remained intact, yet holding that the Petition would be rendered nugatory absent a stay of the process; and whether the order granted was overbroad and final in effect.iii.Unless the order granted by the High Court is stayed, the intended appeal will be rendered nugatory because the impugned order presently freezes the very transaction and process whose interlocutory suspension is the subject of the intended appeal. The continuing restraint threatens to consume the commercial, fiscal and regulation opportunity which the appeal seeks to restore and, if allowed to run its course, may render the appeal merely academic even if it eventually succeeds.ii.The continuing operation of the impugned order occasions grave public prejudice, including disruption of fiscal planning, uncertainty in a market- sensitive listed- company transaction, interference with regulatory sequencing, erosion of investor confidence, and the freezing of a transaction intended to raise approximately KES 204.3 billion together with an upfront KES 40.2 billion payment. On the Applicants' evidence and the National Assembly resolutions, those funds were to be applied to the National Infrastructure Fund, budget support, fiscal-stability objectives and long-term national savings, while the foreign-investor inflow would also support external liquidity. There is further a real commercial risk that prolonged restraint may cause the proposed purchaser to reconsider, re-price or abandon the transaction altogether.ii.The application has been brought promptly and in good faith and it is just, fair and in the public interest that the Court grant the orders sought.” 2.The evidentiary prop of the motion is provided by a supporting affidavit and a further supporting affidavit, both of 22nd May 2026, by CPA John Mbadi Ng’ongo EGH and Dorcas Agik Oduor, SC, EGH, the 1st and 3rd applicants, respectively. In his affidavit sworn on behalf of the co-applicants, the 1st applicant expresses disaffection with the order of the High Court against which they intend to appeal, to the effect that;“A conservatory order is hereby issued restraining ALL the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya’s 15% shareholding in Safaricom PLC to the 7th and 8th respondents or to any other entity or person, pending the hearing and determination of the petition.” A copy of the said ruling is annexed and marked. 3.He deposes that the applicants do have an arguable appeal raising serious issues of law and principle. They, in particular, fault the learned judges for granting conservatory orders despite having found that the stricken transaction had not been completed and no contract had been signed, meaning the substratum of the petition remained intact because the process was still subject to other pending statutory and regulatory approvals. The issuance of the conservatory order revealed;“A bona fide and arguable internal inconsistency in the ruling among other appealable errors, including the treatment of the applicable statutory framework, the public-interest analysis and the grant of an overboard final-in-effect order at interlocutory stage.” 4.He went on to swear that as the transaction remained subject to “statutory and regulatory gates,” no real and imminent constitutional injury had been demonstrated by the petitioners at the court below to warrant the orders that would “distort capital markets undermine investor confidence and prejudice fiscal planning”; the shares in question remain listed on the Nairobi Securities Exchange and therefore remediable by the court at final determination should any illegality be eventually proved and the blanket freeze at interlocutory stage was not warranted.” Such freeze, unless stopped, would render the intended appeal nugatory as the very prejudice sought to be prevented would have crystalized reducing the appeal to “an abstract inquiry after the commercial, fiscal and regulatory opportunity has already been lost.” 5.Stating that the prejudice is not merely private and abstract, the deponent avers as follows;“11.The continuing order occasions public prejudice by freezing a revenue-raising and asset reallocation process, disrupting implementation planning, creating uncertainty in the capital markets, interfering with regulatory sequencing, and undermining investor and market confidence in respect of a listed company of national importance. 12.That more particularly, the divestiture structure placed before Parliament and deponed to in the High Court contemplated proceeds of approximately KES 204,333,652,800 from the sale of the 15% stake at KES 34 per share, together with an upfront payment of KES 40.2 billion in lieu of future dividends on the Government’s retained 20% shareholding. The National Assembly further resolved that the proceeds would be paid into the National Infrastructure Fund and that the structure formed part of the Government’s broader fiscal consolidation and divestiture objectives. 13.That part of the funds were intended to support the budget by closing financing gaps and enhancing fiscal stability; a significant portion was to be directed to infrastructure priorities including roads, energy and digital networks; and another portion was to contribute to the Sovereign Wealth Fund in furtherance of long-term national savings and intergenerational equity. The continuing restraint therefore postpones or jeopardizes specific public- finance and development objectives rather than merely delaying an ordinary commercial bargain.” 6.It is further sworn that the proposed purchaser is a foreign strategic investor, the transaction entails a substantial in-flow of external capital with hard currency inflows needed to support external liquidly and ease pressure on the country’s foreign exchange reserves so that “any loss or material delay is a matter of public economic significance.” The conservatory order, the deponent swears, also creates a real commercial risk since the ensuing uncertainty for a prolonged period could lead the purchaser to seek to “reprice the deal, defer it indefinitely, or walk away altogether,” resulting in loss of timing, market opportunity and irreversible loss incompesable by costs or damages after a successful appeal.He further swears that;“The wider economic impact of the continuing freeze is therefore immediate and cumulative: it disturbs fiscal planning; impairs debt-management and financing options; prolongs uncertainty around infrastructure funding; chills investor confidence in the Kenyan capital markets; complicates regulatory sequencing; and threatens the loss of an already structured and approved transaction whose proceeds were intended for public-development purposes.” 7.The C.S. concludes by deposing that it is just, fair, and in the public interest that the court grant the stay sought. 8.The affidavit by the Hon. Attorney General supports that of the Secretary to the National Treasury and emphasizes the legal formal aspects to the effect that a notice of appeal having been lodged, this Court has jurisdiction to entertain the present application, and that the same does satisfy the twin tests of arguability of appeal and the risk of the same being rendered nugatory. 9.The 1st respondent, Tony Gachoka opposed the application vide a-62 paragraph replying affidavit sworn on 16.6.26 starting off with the averment that the application is devoid of merit and protesting that the Attorney General Dorcas Oduor’s affidavit was incompetent for dealing with contentious matters. Questioning the arguability of the intended appeal, the 1st respondent swore that Sessional Paper No. 3 of 2025 on the Government’s intended partial divestiture in Safaricom Ltd by selling 15% of its shareholding was not subjected to public participation, in violation of the national values and principles in Article 10 of the Constitution. The Sessional Paper also failed the test of transparency and there was unclarity as to who between the 8th and 9th respondent was the intended purchaser. He charged that the 1st applicant acted beyond its mandate and powers under the Constitution by attempting to raise revenue by selling its shares, held in trust for the general public. The 1st applicant is accused of misleading the National Assembly and obtaining its approval for the sale of shares by fraudulent misrepresentation and non-disclosure, of not complying with several provisions of the Constitution and the Privatization Act, and of engaging in gross irregularities in deliberate perpetuation of opaqueness so as deprive the Kenyan public the true value of the shares by use of handpicked transaction advisors whom he refers to as “crony professionals for the benefit of cartels” in disregard of the Public Procurement Disposal Act, 2015. 10.Mr. Gachoka swore, further, that the price of Kshs. 34 per share was a gross undervalue purely or selectively negotiated by the 1st applicant and the 8th and 9th respondents (Vodacom Group and Vodacom Kenya) and unscientifically arrived at by undisclosed methodology to the grave detriment of the Kenyan public who had limited information during public participation, underscoring the rushed, opaque, non-competitive and procedurally irregular process prejudicial to the public interest. Moreover, a sale to Vodacom Group through Vodacom Kenya would give it a 55% controlling interest, while reducing the Government’s Ownership to a paltry 20%, thereby threatening the country’s control and sovereignty over critical national infrastructure and expose sensitive financial and security sectors to undue foreign influence in breach of Article 1 of the Constitution. 11.For those reasons the 1st respondent styles the applicant’s assertions as to arguability of the motion as “speculative and unsubstantiated” in the absence, according to him, of a draft memorandum of appeal. We have seen such draft memorandum on the record, though. 12.On the nugatory aspect, the 1st respondent deposes that the applicants will suffer no prejudice as “the petition will be heard on 29th June 2026 and judgment delivered thereafter,” and the transaction remains “incomplete, conditional and subject to various statutory, constitutional and regulatory approvals.” He went on to swear as follows;“ 50.That the conservatory order is lifted or stayed and the intended sale, transfer or alienation proceeds before the constitutional questions raised in the petition are determined, the substratum of the petition risks being fundamentally altered or defeated. 51.That in such circumstances, any eventual success by the petitioners may be rendered ineffective and the Court may be confronted with a full accompli situation involving third-party rights and interests.” 13.He was dismissive of the applicants’ assertions as to investor confidence, market uncertainty and fiscal consequences, terming them “speculative” “unsupported” “generalized” with no independent evidence demonstrating “imminent or irreparable prejudice.” He swore that investor confidence would, in fact, be enhanced by public officials upholding the rule of law and constitutionalism as sought by the petition of the High Court. Thus, the conservatory order issued preserving the status quo serves rather than undermines the public interest, which would be the consequence of lifting the conservatory orders. To him, the balance of convenience and public interest “overwhelmingly favour maintaining the conservatory order.” He termed the motion an attempt to obtain at interlocutory stage the substantive relief sought in the intended appeal. He prayed the petition be dismissed. 14.Those averments were repeated in material form in the 1st respondent’s grounds of opposition that were filed by Mugeria Lempaa & Kariuki LLP dated 16.6.26. 15.The applicants filed written submissions on 28.5.26 in which they asserted that the motion met the two settled question under Rule 5(2)(b), namely; whether the intended appeal raises an arguable appeal, of which a single ground suffices; and, whether such appeal would be rendered nugatory absent stay meaning its success would be hollow on account of the subject matter being altered or the occurrence of irreversible or disproportionate prejudication of the interim. This Court’s decision of Stanley Kangethe Kinyanjui Vs. Tony Ketter & 5 Others [2013] eKLR; Reliance Bank Ltd (in Liquidation) Vs. Norlake Investment [2002]1 EA and Oraro & Rachier Advocates Vs. Cooperative Bank Of Kenya LTD [1999] eKLR were cited in aid. They asserted that the granting of “a blanket conservatory order” by the High Court, despite having found that the substratum remained intact because the process still required further statutory and regulatory approvals, created a tension that was “a serious appealable point.” They also pointed to additional arguable of points as being;“Whether the Court properly applied the threshold for conservatory relief; whether it gave sufficient weight to section 87A of the Public Finance Management Act route and the multi-layered regulatory framework; whether it treated serious allegations as proved interim prejudice in the absence of expert or documentary foundation; and whether the order granted was overbroad and effectively final in its operation.” 16.trust bank limited vs. investech bank ltd & 3 others [2000] eKLR was relied on for the proposition that the points raised need not succeed, sufficing that they are deserving of the Courts consideration. 17.Submitting that the real force of the application lay in the nugatory limb, the applicants contended that the impugned conservatory order did not merely preserve a static asset, it froze a time-sensitive, market-facing and cross-border transaction designed to yield some Kshs.204.3 billion together with an upfront payment of Kshs.40.2 billion in lieu of future dividends. These funds;“Were earmarked for the National Infrastructure Fund, budget support, fiscal-space creation, catalytic infrastructure, debt-pressure reduction and long-term national savings. If the conservatory order persists long enough to defeat or materially alter the transaction, a later successful appeal will not restore the lost timing, fiscal opportunity, or market window.” 18.Citing the Supreme Court’s decision in Munya Vs. Kithinji & 2 Others [2014] KESE 30 KLR, the applicants urged that the risk of waste of public funds and other public resources is a proper consideration in interim relief and there is need for the court to safeguard public monetary resources. Given the nature of the transaction herein, there is an immediate and practical danger of such loss due to the uncertainty created by the conservatory order with the attendant risk of re-pricing, deferral or outright withdrawal by the buyer, and the applicants would not wait “until the counterparty formally walks away,” hence the application before us which we should approach, in assessing the nugatory effect, in a practical, common-sense way consistent with this Court’s holding in RELIANCE BANK (supra). 19.They submitted further that;“The supporting affidavit of the Cabinet Secretary further explains why the transaction was routed through the existing strategic shareholder rather than a public sale or a new financial investor. The strategic route supports hard-currency settlement, reduces execution risk, preserves business continuity, and allows the Government to sell at a premium. The alternatives were assessed as slower, more volatile and less likely to attract sufficient hard currency.” 20.They posit that if the transaction in process is lost, it is no answer that the Government may sell later to some other buyer in different terms, as the loss to be incurred at present in terms of foreign exchange, external capital flow and the effect on fiscal management, infrastructure financing, urgent energy, roads, water, airports, digital infrastructure and long-term public investment support portends such loss and prejudice as to render the appeal nugatory. In addition it will inject uncertainty into the statutory process involving Parliament, the Capital Markets Authority, the Competition Authority, the Communications Authority, the Nairobi Stock Exchange and related institutions. Success of the appeal would thus be hollow due to loss of the relevant opportunity, process and value. On the question of relative prejudice, the appellants’ case is that;“ 14.Nor is there countervailing prejudice to the respondents if a stay is granted. The High Court itself accepted that the transaction had not been completed and remained subject to further approvals. Stay would therefore restore the position the law had already created: a regulated, still- conditional process capable of continuing under statute while the Court of Appeal determines whether the interlocutory order should have been imposed at all.” 21.In written submissions on his behalf the 1st respondent concurred with the applicants that the two tests to be satisfied in a 5(2)(b) application are those enunciated in Stanley Kangethe Kinyanjui (supra). He took issue with what he termed the applicants’ failure to prepare and serve a letter bespeaking proceedings contrary to Rule 84(1) and (2), which means they will be unable to file a record of appeal. He cited this Court’s ruling in Mae Properties Ltd Vs. Joseph Kibe & Anor [2017] eKLR. 22.On arguability of the intended appeal, the 1st respondent answered in the negative and extolled the ruling of the High Court as a careful and deliberate exercise of judicial discretion their dissatisfaction with which does not, without more, establish a ground of appeal. Relying on Kenya Tea Growers Association & Anor Vs. Kenya Planters & Agricultural Workers Union [2012] eKLR, the 1st applicant posits that the applicants has not demonstrated, prima facie, that their complaint discloses a real controversy. Nor have they established any grounds to show discretionary error on the part of the High Court, which took proper account of the constitutional values and imperatives at stake in the intended sale as well as the proportionate magnitude and priority levels attributable to the cause at hand, in clear deployment of Supreme Court phraseology. 23.Turning to the nugatory aspect, the 1st respondent proffered a negative response as well, stating that the case did not satisfy the test that the subject matter would be irretrievably lost, as stated in PRINCIPAL SECRETARY MINISTRY OF INTERIOR & COORDINATION OF NATIONAL GOVERNMENT & 6 OTHERS [2022] KECA 856 KLR, since the conservatory order did “no more than preserve the status quo pending the hearing and determination of the petition” by suspending the implementation of the impugned transition until the constitutional questions raised are conclusively determined. They also cited ROYAL MEDIA SERVICES LTD vs. ATTORNEY GENERAL & 2 OTHERS [2013] KECA 546. To the 1st respondent, the fact that the applicants acknowledge that the transaction has not been completed, no transfer has occurred and the process remains conditional and subject to statutory and regulatory approvals, means that preservation of the status quo does not render the appeal nugatory. He dismisses the alleged investor uncertainty, fiscal inconvenience and the risk of repricing as entirely speculative and unsubstantiated absent an “affidavit from the alleged buyer indicating intention to terminate the transition” or correspondence threatening withdrawal. 24.Conversely, argues the 1st respondent, it is the granting of the orders sought herein that presents a real and immediate danger of rendering the pending proceedings nugatory as the sale may proceed and “the court may be confronted with completed transactions involving third parties, rights regulatory approvals and commercial arrangements that may be difficult or impossible to reverse.” Citing the CENTRE FOR RIGHTS EDUCATOIN AND AWARENESS (CREW) & 7 OTHERS Vs. ATTORNEY GENERAL [2011] eKLR, he asserted that public interest needs to be viewed beyond the Kshs.204.3 billion as legalities operates to encompass transparency, accountability, public participation and prudent management of public assets. 2.5When the motion came up for hearing on 18.6.26, John Ohaga learned Senior Counsel appeared with Mr. Christopher Marwa for the application while H.E. Dr. Stephen Kalonzo Musyoka, SC appeared with Mr. Lempaa as learned counsel for the 1st respondent. The second respondent, Prof. Frederick Ogola was present in person as were Mr. Samuel Kahara and Mr. Paul Maina Mugo, the 3rd and 4th respondents, respectively. Mr. Muganda learned counsel appeared for the 5th respondent. The 6th respondent was absent. The 7th respondent was represented by learned counsel Mr. Mukite Musangi and Ms. Nderu. Ms. Abdalla, learned counsel appeared for the 8th and 10th respondents. Learned Senior Counsel Mr. McCourt represented the 10th respondent. The 2nd and 3rd respondents elected not to participate in the proceedings notwithstanding that we gave them the option to respond orally to the motion and adjourned for a time to enable them to make preparation. 26.In his address to us Mr. Ohaga, SC highlighted the case as captured in the applicants’ affidavits and submissions. He first addressed the objection taken regarding non-compliance with Rule 84 of the Court of Appeal Rules by stating that the said objection should go to the appeal proper and is, therefore, premature. We state straight away that this submission is eminently merited since the jurisdiction to hear a 5(2)(b) application is triggered by the lodging of a notice of appeal, the existence whereof herein is undisputed. Rule 84, on which the objection about the letter bespeaking proceedings is based, relates to the institution of appeals and the computation of the time therefor. The rule has no relevance to a Rule 5(2)(b) application and is, therefore, premature. It is apparent to us that counsel for the 1st respondent are fully cognizant of this position and, to their credit, they did not press the point with any force. 27.Mr. Ohaga also addressed the objection to the Further Supporting Affidavit of the Hon. Attorney General Ms. Dorcas Oduor, EGH, by stating that the said affidavit did not depose to any contentious matters and confined herself to merely procedural issues. On this, as well, it seems plain from the said affidavit that there is nothing contentious deposed to and the objection to the same is unfounded. 28.Mr. Ohaga next stated that the limb of arguability of the appeal is a low threshold one and asserted that the proposed grounds of appeal as captured on the face of the motion and in the affidavit of the Cabinet Secretary, National Treasury and Economic Planning are clearly arguable and he thus did not have to confront the contrary contention. Regarding the nugatory aspect, he emphasized the time- sensitive character of the transaction involving considerable sums of money and an opportunity likely to be lost should an indefinite freeze lead the buyer to either re-price, defer or walk away altogether. The hard-currency inflow is a matter of great significance in a country in dire need of hard currency, and a stoppage thereof would lead to irreparable prejudice to public finance objectives “going beyond the narrow interests” of the opposing respondents. The delay is neither compensable nor recoverable and he urged us to uphold the duty of safeguard public funds and ensure proper husbandry of public resources as guided by the Supreme Court in MUNYA Vs. KITHINJI (supra) which he stated was binding on us and which he pleaded to be authority for us to grant a stay of the conservatory order that was itself the nature of interim stay. He reiterated that it was erroneous for the High Court Judge to have issued a blanket stay when the transaction still had to go through various statutory and regulatory processes, which the order also froze. He submitted that it would have been a proper exercise of discretion had the High Court issued a structured conservatory order that would have allowed the other regulatory process and halted the transaction just before consummation. 29.Mr. Muganda associated himself with Mr. Ohaga’s submissions and did not address us. On his past, Mr. Musangi contended that whereas a conservatory order is ordinarily intended to conserve a position in a neutral manner, what was issued by the High Court actually has an adverse impact on the public. Beyond the opportunity costs, these monies are investible funds that come into the public purse under Public Finance Management Act and so every day the Kshs.244 billion is not recovered is a direct financial loss. Referring to what the High Court was told, Mr. Musangi submitted thus;“And we computed it by showing the court that even if you conservatively took the investable amount at 9%, every single day of this conservatory order costs the exchequer 70 million shillings in lost revenue and it was demonstrated. The court did not address its mind to that at all because if, for example, you have a conservatory order lasting 7 months, or 6 months, or 3 months, after 3 months, if you find the petitioner's case has no merit, the exchequer will still receive 244 billion, not up anymore. And what is the converse position? If you allow the transaction to proceed, we submitted extensively to the courts that Safaricom PLC shares are not being picked up and put in a basket and taken to another jurisdiction. If there is merit found in the petitioner's case at the end of the matter, nothing would be simpler than a court to order reversal of the transaction, in which case, the exchequer would not have been put to loss, which is irrecoverable from the petitioners, absolutely irrecoverable.” 30.Counsel pressed that it is critical that when a court considers the grant of a conservatory order in its discretion, it understands whether it is a neutral posture order or an adverse order. To him, the conservatory order given by the High Court was a highly prejudicial order, an aspect that High Court failed to address in its ruling. 31.Mr. McCourt associated himself with the submissions of Mr. Ohaga, SC and Mr. Musangi and simply stated for the record that his clients were in support of the application. 32.Rising to oppose the application, Mr. Lempaa referred the decision of the High Court as not consisting in abuse of discretion but was one based on elaborate expert evidence showing that the shares intended to be sold were undervalued whereas, had they opened up to a secondary IPO, “every Kenyan would be in a position to buy the shares in this important national infrastructure and asset” including the Generation Z who were not mature enough to participate in the 2007 initial IPO. He protested the notion that his client was pursing narrow interests and contended that the matter was one of immense public interest. He characterized the process of the intended sale of shares as opaque with the Kshs. 34 per share being a “gross undervalue” to the detriment of the people of Kenya the ultimate owners of the 35% stake Safaricom and not preceded by real public participation. He stated all this to support the view that intended appeal is unarguable. Waxing lyrical, he quoted from Chinua Achebe’s Arrow of God to state that the divesture of 15% of such an important asset “is like hot soup that must be taken away carefully along the edges of a bowl.” 33On the nugatory aspect, he contended that were we to lift the conservatory order, it will be very hard to reverse the Kshs. 204 billion involving foreigners. He urged us to reject the application. 34.When pressed by the Court for clarity whether the 1st respondent was opposed to the sale at Kshs. 34 which he considers an undervalue or the very idea of divestiture, Mr. Lempaa’s answer was, curiously, a positive to both, which is quite clearly a conflation of two contradictory arguments but he held his ground. He also took the view that it would be very difficult and onerous for the Kshs. 204 billion to be rescinded by the court when the transaction involves “Multinationals, foreigners.” 35.On his part, the pro se 4th respondent, Mr. Maina also took the view that arguability of the intended appeal had not been demonstrated. Further, the applicants had not shown any basis for this Court to interfere with the High Court’s grant of conservatory order following inter partes hearing. There was also no concrete evidence to support the allegations of loss of revenue, loss of confidence or possible withdrawal of the purchaser so that all claims of prejudice are largely speculative and economic in nature, yet there is nothing to show the transaction would collapse if the conservatory order remains in force. He urged that public interest is not limited to revenue collection, and encompasses adherence to the Constitution, transparency, accountability and lawful management of public assets. To him, the transaction will still proceed should the applicants succeed on appeal, so it would not be rendered nugatory. Conversely, if the stay is granted and the impugned transaction proceeds, “the subject matter of the dispute may be fundamentally altered before the constitutional issues are determined.” He contended that it is easier to act before the transaction goes on as opposed by trying to reverse it later, since cancelling it afterwards will cost the tax payer even more. Prudence therefore advises that the subject matter be preserved. 3.6Answering questions from the bench, Mr. Maina stated that he was not opposed to the divestiture of these public assets but wanted the process to be done within the confines of the Constitution and the statutes that guide disposal or divestiture of public assets, and without undervaluation. 37.When making reply, Mr. Ohaga first cited the case of CABINET SECRETARY OF HEALTH Vs. AURA & OTHERS [2024] KECA 2 KLR and CABINET SECRETARY NATIONAL TREASURY Vs. OKOITI & 12 OTHERS in answer to the question we had posed to him previously on whether there have been instances where this Court has issued orders staying conservatory orders of the court appealed from. He then went on to state that the foreign purchaser referred to by the opposing respondents was already a shareholder in Safaricom, which was not challenged. Regarding a stake in Safaricom for Kenyans including Gen Z’s, he stated that nothing stops that generation from acquiring the shares which are freely available on the Nairobi Stock Exchange. He concluded by stating that present mobilization of public resources, fiscal stability and the respect for the constitutional role of Cabinet and Parliament who approved the transaction are also elements of public interest which is not one- dimensional. 38.For all the attention this application has received and the unusual length of the replying affidavit filed by the 1st respondent, which Mr. Lempaa stated was a way to circumvent the spacing and length limitations imposed by the Court on written submissions, this is simply a rule 5(2)(b) application which should not have attracted a ruling this long. The matters that fall for consideration are old hat and the applicable principles were aptly summarized in STANLEY KANGETHE (supra). We need not repeat them beyond stating that an applicant must demonstrate that he has an arguable appeal, which means no more than to say that the appeal or intended appeal raises at least one bona fide point of law and fact that calls for reply from the respondent and is worthy of judicial consideration on appeal. A single such ground suffices, and it is not one that must necessarily succeed. In short, the ground of arguability of an appeal is a low threshold one, easily achieved unless, looked at as a whole, what is raised on the face of the motion, the replying affidavit or a memorandum of appeal appears patently and indubitably to be so dubious and hollow that it is not worthy of opposing party-answer, or such as a court should not even trouble itself considering. Such cases are rare especially because a bench considering a rule 5(2)(b), with the appeal proper not yet argued before it, will necessarily be slow to make concluded findings that the appeal is unarguable except in the plainest of cases where the appeal is prima facie hopelessly bad. Bearing these considerations in mind, we have no difficulty finding that the intended appeal herein is eminently arguable. 39.The real controversy herein is on whether the nugatory aspect has been established by the applicants on whom lies the burden to demonstrate it on a balance of probabilities. An appeal is said to be rendered nugatory when its eventual success is rendered hollow, academic, illusory or merely pyrrhic, by reason of the apprehended harm having occurred in the interim, which is grave or irreversible and incapable of compensation including by an award of damages or costs. The determination of these issues is on a case by case basis and we must consider that the term nugatory, per RELIANCE BANK (supra), is to be approached from a practical, commonsensical way. In other words, the Court must be prudent and pragmatic in its assessment. 40.We are cognizant that the grant of conservatory orders is at the discretion of the court, and it is no small matter for us to order a stay of such orders when granted by the High Court, pending appeal. Indeed, it is always best that this Court’s jurisdiction be invoked when the High Court has declared itself on the merits of the dispute through a judgment. We are, however, equally mindful that interlocutory conservatory orders may have far-reaching consequences and so, when an interlocutory appeal is filed and we are moved under Rule 5(2)(b), we may intervene pending appeal, although such intervention must be slow and in the most deserving of cases. We do so by a careful consideration of the public interest, which is not mono-dimensional, and to ensure that a pleader who demonstrates grave prejudice flowing out of a conservatory order granted in the court below is not bereft of relief or succour and his appeal thereby rendered nugatory. The discretion to issue orders that stay or vacate conservatory orders has been recognized in such case as CABINENT SECRETRAY FOR THE NATIONAL TREASURY AND PLANNING & ANOR Vs. OKOITI & 12 OTHERS (supra) which were referred to by this Court sitting in Nakuru in ATHI WATER WORKS DEVELOPMENT AGENCY & 3 OTHERS Vs. GIKENYI B & 77 OTHERS; MOI TEACHING & REFERRAL BOARD & 60 OTHERS (INTERESTED PARTIES) [2024] KECA 1512 (KLR) which stated that it was persuaded that this Court can, where appropriate, vacate conservatory orders pending appeal where a matter where such orders were issued is still pending. See, also ATTORNEY GENERAL & ANOR Vs. OKOITI & 3 OTHERS [2026] KECA 902 KLR. 41.The contending sides in this contest do agree that the transaction for the sale of Government’s 15% shares in Safaricom is far from concluded, with some pending regulatory processes yet to be undertaken so that Parliamentary approval was just one stage in a still conditional statutory process, which the High Court acknowledged. There seems to be no dispute on the importance and significance of the transaction itself, in terms of its impact on the country’s fiscal environment given the sheer magnitude of the foreign exchange that would be injected into the economy. Moreover, the CS Treasury has stated on oath that the anticipated Kshs. 204 billion from the sale of the shares at Kshs. 34 per share with an upfront payment of Kshs. 40.2 billion in lieu of future dividends, is meant to support the budget by closing financing gaps with a significant portion being directed to significant infrastructure priorities, and contribute to the Sovereign Wealth Fund. The applicants contend that the conservatory order was not neutral in effect but did, instead, prejudice salutary national interests by jeopardizing the entire transaction as the freeze on its progression could lead to the purchaser seeking to re-price the deal, defer it indefinitely or walk away altogether, with deleterious effects in the form of loss of timing, market opportunity and foreign currency in flow, which would be irreversible. They went on to assert that every single day the money is not received by reason of the conservatory order translates to a loss of Kshs. 70 million which could be interest earned if the money were invested as required by the Public Finance Management Act. Such losses cannot be expected to be recovered should the appeal succeed and the conservatory order be found to have been erroneously issued. The public interest, therefore, tilts heavily in favour of lifting the conservatory order as an act of prudent avoidance of loss of public funds. 42.We think, with respect, that the picture of loss, adverse effect and prejudice to the public interest that has been painted by the applicants is not one that we can unsee or ignore. There has been no attempt by the opposing respondents to controvert that spectre of loss. The position they adopt is that there is a greater more compelling value of constitutionality and legality that must override financial considerations. They say it is better to take preventive measures to forestall a sale that may be unlawful or an under sale, than to seek to reverse it when consummated and concluded. They do, however, seem to speak from both sides of the mouth on their true position with regard to divestiture of the Safaricom shares, and it is unclear whether they are wholly and intractably opposed to any divestiture thereof, or only to the extent that the same is at an undervalue and to a foreign multinational company. There is no doubt, however, that the proposed purchaser is already a shareholder of Safaricom PLC and the company remains subject to the country’s laws regarding data protection and operates within a government regulated telecommunications sector. 43.On whether the conservatory order if not stayed, would render the intended appeal nugatory, we are satisfied that it would. We have already adverted to the not insignificant loss of Kshs. 70 million per day from delay in receipt of funds. Courts must consider what would be reasonable and prudent in the management of public funds and we are therefore satisfied, as was the Supreme Court in MUNYA Vs. KITHINJI (supra) that the public interest commands a decidedB interest in safeguarding of public resources achievable by unshackling of the transaction from the conservatory order in the instant case. 44.We think that in this respect the case at bar is at all fours with the CABINET SECRETARY MINISTRY OF HEALTH Vs. AURA & 13 OTHERS (supra) where the Court reasoned thus; 36.We think, with respect to Mr Aura, that the scenario said to have been precipitated by the conservatory order cannot be taken lightly. The injuncting of the regulatory framework intended by the restrained statutes is said to have led to confusion and to have exposed patients to serious risk to health as they stand to be denied treatment. 37.We think that given what has been sworn by the CS there is a real and present danger to the health rights of countless citizens who are not parties to the litigation pending before our courts. We are persuaded that the confusion, the lacuna and the risk and harm to citizens pending the hearing and determination of the appeal is a price too dear to pay, and it would have the elect of rendering the appeal nugatory having regard to the duty to give the term its full meaning as was stated in Reliance Bank Ltd v Norlake Investments Ltd [2002] EA 227. There, the court stated, and we would apply the same consideration herein that;‘To refuse to grant an order of stay to the appellant would cause it such hardships as would be out of proposition to any suffering the respondent might undergo while waiting for the applicant’s appeal to be heard and determined.’” 45.Nor are we persuaded by the opposing respondents’ arguments, strongly and persuasively put though they were, that the consequences of the challenged sale, even were it to be concluded by the time the pending petition is finalized, would be irreversible. All the parties herein are within the jurisdiction of our courts and the shares of Safaricom PLC will remain capable of being restored to the relevant party with appropriate refunds being made, should those be the order that may ultimately issue. 46.We find apposite and fully-reiterate the posture adopted by this Court in ATTORNEY GENERAL & ANOR Vs. NAFULA & OTHERS [2021] KECA 647 KLR where, in staying conservatory orders that had barred the continuation of the recruitment process for the Chief Justice and the commencement of appointment of a Judge of the Supreme Court pending the hearing and determination on intended appeals. Said the Court; 46.We think, with respect, that courts should endeavour to facilitate obedience to and observance of constitutional bounds and statutory timeliness. In the case at bar, it is urged that truncating the interview and nomination process for the Chief Justice and eventual appointment will lead to an overshoot of the statutory timelines, with a real and present danger of a constitutional crisis of the character adverted to herein. We are not persuaded that we should actively aid and abet such a result. 47.Thus, while not at all treating as de minimis the concerns and complaints of the petitioners, and while concerned by the fear expressed, but still unproven, that the interview and recruitment process might fall capture to forces bent on manipulating the process and bending it towards a pre-determined end, we cannot act on dark forebodings alone, less still ignore the jurisdictional bar apparent in the path of the High Court. The rule of law cannot be achieved by breach of law. We are satisfied that, all things considered, the public interest and the cause of justice will best be served by grant of the applications. 48.It bears repeating that JSC is a constitutional commission and each of its Commissioners bears a collective as well as a personal responsibility to act conscientiously in accordance with the dictates of the Constitution. It is also obvious that the completion of the recruitment process per se does not immunize, provide blanket cover or otherwise whitewash any procedural or substantive wrongs and iniquities, for the High Court may yet invalidate even a concluded appointment, if such be proved.” 47.Having fully and thoroughly considered this application, we come to the conclusion that it satisfies the two limbs of arguability and nugatory, and that the public interest compelling demands that the stay sought be granted. We accordingly grant it. 48.The costs of the motion shall abide the outcome of the intended appeal.So ordered. DATED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE, 2026.P. O. KIAGE..............................JUDGE OF APPEALL. ACHODE..............................JUDGE OF APPEALA. O. MUCHELULE..............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR