https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6902

Gachoka & 2 others v Cabinet Secretary, National Treasury and EconomicPlanning & 11 others (Petition E051 of 2026 & 836 of 2025 (Consolidated)) [2026] KEHC 6902 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6902 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Petition E051 of 2026 & 836 of 2025 (Consolidated) F Gikonyo, RE Aburili & TW Ouya, JJ May 18, 2026 Between Tony Gachoka 1st Petitioner Prof. Fredrick Onyango Ogola 2nd Petitioner and The Cabinet Secretary, National Treasury And Economic Planning 1st Respondent The Cabinet Secretary, Information, Communication And The Digital Economy 2nd Respondent The Communication Authority Of Kenya 3rd Respondent The Competition Authority Of Kenya 4th Respondent The Hon. Attorney General 5th Respondent Safaricom Plc 6th Respondent Vodacom Group 7th Respondent Vodafone Kenya Limited 8th Respondent As consolidated with Petition 836 of 2025 Between Samuel Kahara Macharia Petitioner and National Treasury 1st Respondent Cs National Treasury 2nd Respondent The Privatization Commission 3rd Respondent Capital Markets Authority 4th Respondent Attorney General 5th Respondent Vodafone Group Plc 6th Respondent Ruling Failure to serve a foreign entity 1.Vodafone Group PLC, is the 6th Respondent in Petition No E836 of 2025. It gave a Notice of Preliminary Objection dated 4th February, 2026 to the effect that; since the petitioner did not obtain leave of court to serve and has not served the petition on it outside jurisdiction, the court lacks jurisdiction, thus, its name be struck out of the petition. 2.The objection is anchored upon Order 5 rules 21, 22, 23, 28 and 29 of the Civil Procedure Rules, 2010 on service outside jurisdiction. 3.The objection was augmented through written submissions dated 22nd March, 2026. 4.Their argument is that, failure to seek leave of the court to serve outside jurisdiction and non-service of the petition upon them justify striking out of their name from the petition. 5.According to them, the company is registered, has its office and place of business in the United Kingdom. It does not carry out business in Kenya. Thus, a foreign entity. 6.They argued that, jurisdiction derives from the Constitution or statute. S.K. Macharia & Another vs. KCB & 2 Others [2012] eKLR. And, that: ‘The court assumes jurisdiction over persons outside Kenya by giving leave…to serve…outside the country under order V rule 23 (now order 5 rule 25 of the CPR)…’ Raytheon Aircraft Credit Corporation & another vs. Air Al-Faraj Limited [2005] eKLR, Mwilu vs. BBC [2024] kehc 7937 (KLR) 7.To them, it is only after leave has been granted for service and the pleading have been served outside jurisdiction upon the foreign entity that the court shall assume jurisdiction. 8.They also cited the cases of LSK vs. Martin Dya & 3 Others [2015] eKLR, Misnak International (UK) Limited vs. 4MB Mining [2019] KECA 471 (KLR) in support of the PO. 9.They made further arguments on the purpose of leave to serve outside jurisdiction is to enable the court ascertain whether the applicant has a good cause of action against the foreign person who resides and carries business outside the country. 10.They concluded that, since the requirements under order 5 on service outside Kenya are mandatory, non-compliance thereto renders the proceedings against the foreign entity a nullity for want of jurisdiction. Roberta Macclendon Fonville vs. James Otis Kelly III & 3 others [2002] KLR, Naomi Cidi vs. RO, Kilifi PET. NO 13 OF 2013. 11.In any event, they urged, that service of a petition is mandatory under rule 14(1) of the Mutunga Rules and the petition cannot proceed against the 6th respondent if it has not been served. They took the view that, in such circumstances, they may not be required to participate in the proceedings. 12.In sum, they took the view that the requirements of service of pleadings are not mere technicalities that may be cured. Thus, urged the court to strike its name from these proceedings. Analysis and determination 13.The objection raised is that no leave was applied for or obtained to serve the petition outside Kenya denying the court jurisdiction over the foreign entity. For that reason, they seek that their name be struck out of the petition. The threshold 14.A preliminary objection is a matter of law which is capable of disposing of the suit; must not be blurred by factual details calling for evidence or a call upon the court to exercise discretion. Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Ltd [1969] EA 696. Applying the test 15.This is a constitutional petition for which service outside Kenya may be allowed. Rule 22(1)(a) of Order 5 of Civil Procedure Rules. 16.Nonetheless, it bears repeating that this is a constitutional petition seeking constitutional relief for the benefit of the people of Kenya. The petition alleges contravention of specified provisions of the Constitution, inter alia, on public participation, principles of sustainable development and intergenerational equity, right to access to information, data integrity and privacy thereof, economic sovereignty, protection of national security, revenue raising power and public debt, public finance, protection of public property as well as statutes. Thus, a public litigation. It is not an ordinary civil proceeding between private parties. 17.Of importance, is that, the petitions as consolidated, were ‘certified by the court as raising a substantial question of law under clause (3)(b) or (d)’ and being ‘heard by an uneven number of judges…three, assigned by the Chief Justice. Art.165(4)’. 18.This forms the functional foundation for the determination of the PO. 19.Doubtless, on prima facie basis, the petitioner ‘has a good cause of action’. But, whether it will succeed or not is a matter for trial. 20.We are acutely aware that, courts have held that, where the Mutinga Rules are silent on a procedural vitality, relevant provisions of the CPR especially on service are applicable. Gabriel Mutava & 2 others vs. MD, KPA & Ano [2016] eKLR and Peter Ochara Anam & 3 Others vs. CDF Board & 4 others [2011] eKLR.) 21.But we should add that, such incorporation as well as construction of the relevant rules of procedure, must be adaptive to the constitutional framing and in accord with the principles that govern constitutional petitions or public litigation generally especially on substantive justice and effectiveness of constitutional remedy. 22.Given the nature of these proceedings which plead violation or threatened violation of rights, the Constitution as well as statutory law, order 5 rule 21(3) of the CPR becomes critical that: -Nothing in this rule shall affect any practice or power of the court under which, when lands, funds, choses in action, rights or property within the jurisdiction are sought to be dealt with or affected, the court may (without affecting to exercise jurisdiction over any person out of the jurisdiction) cause such person to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing, or otherwise intervening. 23.This emphasizes the need to effectively and completely determine the issues in controversy by having all necessary parties on board. 24.In addition, the Mutunga Rules buttresses inclusion of parties ‘whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter’. Rule 5 of the Mutunga Rules. 25.In determining whether a party is necessary party, the court will find out ‘whether there is a right to some relief against such a party in respect of the matter involved in the proceeding in question and whether it should not be possible to pass an effective decree in the absence of such a party.’ Werrot & Company Ltd & Others v Andrew Douglas Gregory & Others, [1998] eKLR 26.In the consolidated petition, relationship amongst the Vodafone group of companies-the 6th respondent being the Vodafone Group Plc- and the shareholders of Vodafone Kenya Limited which is said to be wholly owned by foreigners albeit registered in Kenya, brings to sharp focus beneficial ownership probing and benefits, control and nexus amongst these companies. Making Vodafone Group Plc a necessary party in order to enable the court determine and settle all the issues in controversy. See the amended petition and CR12. 27.From the documents provided especially the No Objection letter by CAK dated 21st January, 2026 which stated that: -…the Authority notes that the proposed transaction will result into Safaricom PLC;a.Attaining a foreign majority shareholding at fifty-five per cent (55%); 28.This is quite significant impleading in these petitions. 29.We do note also that, in the petition Vodafone Group Plc is said to be involved in the negotiations for the sale of the shares in question. 30.We therefore, find that, there is a right to some relief against Vodafone Group Plc in respect of the matter involved in the proceeding and their presence is necessary in order to determine and settle the issues in controversy; and pass an effective decree in the proceeding. 31.Given the nature of these proceedings, the cure for any omission to serve the petition is in ordering service rather than striking out the name of such necessary party from the petition which seeks constitutional reliefs founded inter alia, on alleged violation or threatened violation of rights, property, the Constitution and statutory law in the proposed sale of the shares in question. 32.Even where there is doubt as to the correct parties in a constitutional petition, the rules allow joinder of such parties as may seem to be necessary to enable the court determine and settle the issues in controversy. Rule 5 of Mutunga Rules. Again, these provisions prevent defeating or devaluing the efficacy of constitutional remedies. Sovereignty of the people and supremacy of the Constitution 33.Sovereignty of the people directs how the delegated sovereign power is to be exercised by the various arms of government; that is, ‘in accordance with this Constitution’; Art.1 of the Constitution. 34.More specifically and for purposes of this decision: -‘In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority’. Art.160 of the Constitution. 35.Again: -In exercising judicial authority, the courts and tribunals shall be guided by the following principles—(e)the purpose and principles of this Constitution shall be protected and promoted’. 36.We do not think it would be an act in compliance with the court’s duty to uphold, promote and protect the Constitution, its purposes and principles, to strike out a necessary party such as Vodafone Group Plc on a PO founded on lack of leave to serve and service of the petition. 37.In any event, Vodafone Group Plc is already aware of, and has participated in the proceedings. The major objective of service has, therefore, been attained. 38.Ordinarily, where the court has jurisdiction over the cause of action, under the practice or power of the court, the court may; a) cause a person outside the jurisdiction to be informed of the nature or existence of the proceedings with a view to such person having an opportunity of claiming, opposing, or otherwise intervening; or b) order the person outside Kenya to be served. 39.It bears repeating that, within the framing of constitutional petitions, the nature of the reliefs sought, the pleaded proximate and direct relationships between the parties herein, the circumstances of the case and the interest of justice, provides sufficient justification that this is apt case in which the court should order service upon Vodafone Group Plc and allow them time to file their pleadings in accordance with the right to access to justice and to be heard. Art.48 & 50 of the Constitution, respectively. 40.In conclusion, the PO is incapable of decimating these proceedings or the petition against Vodafone Group Plc. The PO fails and is dismissed with no orders as to costs. 41.The petition be served immediately upon Vodafone Group Plc through their official email address to be provided upon delivery of this ruling. They shall file replies to the petition within 14 days of service. Thus, the court accordingly assumes jurisdiction over the said party. Orders accordingly. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF MAY, 2026--------------F. GIKONYO MPRESIDING JUDGE----------------R. E. ABURILIJUDGE----------------T. OUYAJUDGE