https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8409

Gachoka & 3 others v Cabinet Secretary, National Treasury & Economic Planning & 11 others (Petition E051 of 2026 & E836 & E831 of 2025 (Consolidated)) [2026] KEHC 8409 (KLR) (Constitutional and Human Rights) (9 June 2026) (Ruling) Neutral citation: [2026] KEHC 8409 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E051 of 2026 & E836 & E831 of 2025 (Consolidated) F Gikonyo, RE Aburili & TW Ouya, JJ June 9, 2026 Between Tony Gachoka 1st Petitioner Professor Fredrick Onyango Ogola 2nd Petitioner Paul Maina Mugo 3rd Petitioner Samuel Kahara Macharia 4th Petitioner and The Cabinet Secretary, National Treasury & Economic Planning 1st Respondent The Cabinet Secretary, Information, Communication & The Digital Economy 2nd Respondent The communications Authority of Kenya 3rd Respondent The Competition Authority of Kenya 4th Respondent The Honourable Attorney General 5th Respondent Safaricom Plc 6th Respondent Vodacom Group 7th Respondent Vodafone Kenya Limited 8th Respondent Ministry of National Treasury & Economic Planning 9th Respondent Ministry of Information, Communications & The Digital Economy 10th Respondent The Privatisation Commission 11th Respondent Vodafone Group Plc 12th Respondent Ruling 1.Before this Court for determination are three Applications filed by the 1st and 2nd Petitioners as the applicants. The first Application is a Notice of Motion dated 17th April 2026 filed by the 1st Petitioner and premised on Articles 22, 23, 73, 75 of the Constitution and all enabling provisions of the law. 2.The 1st Applicant seeks the following ORDERS:1.Pending hearing and determination of this Petition this Honourable Court be pleased to issue an order restraining and/or prohibiting Mr. John M. Ohaga, SC, FCIArb and/or Triple OK Law LLP from acting, appearing, advising, or otherwise representing the Attorney General and/or any State organ in proceedings relating to the proposed or contested divestiture of shares in Safaricom PLC (or any related proceedings).2.The ruling of Justice Samwel Nyaberi Mohochi Mukira in Nakuru High Court Constitutional Petition No. EOOI of 2026 (Ruling delivered on 12th January 2026) is a judgment in rem and is therefore binding on all persons and entities.3.An order that costs of this application be provided for.4.Such further and/or other orders as this Honourable Court may deem just and expedient. 3.The Application is premised on the grounds on the face of it and the annexed affidavit of the 1st Petitioner/Applicant Tony Gachoka sworn on even date where he deposes that there exist potential conflicts of interest involving legal representation in these proceedings relating to the proposed divestiture of Safaricom PLC shares. He highlights critical issues pertaining to governance, conflict of interest, constitutional compliance and the integrity of legal proceedings implicating public resources and constitutional principles. The 1st petitioner depones that the Attorney General has appointed external counsel to represent the State in this high-profile Safaricom divestiture litigation, reflecting the significant public interest and constitutional implications of the case. 4.According to the 1st Petitioner, the law firm TripleOKLaw LLP, in which Mr. John M. Ohaga, SC, is the Managing Partner has historical involvement with Safaricom PLC or related commercial interests which past association raises a potential conflict of interest in Mr. Ohaga SC’s current role of representing the Attorney General in the present Petition. 5.The 1st petitioner contends that Mr. John M. Ohaga, SC is publicly known to hold governance roles, including leadership positions in the M-Pesa Foundation governance structure, which is linked to Safaricom and that this dual role raises concerns about overlapping fiduciary and advisory duties that may undermine the independence and impartiality expected in the Attorney General’s legal representation. 6.The 1st petitioner/ Applicant asserts in deposition that on 12th January 2026, the High Court in Nakuru in Nakuru High Court Petition No. EOOI of 2026 issued a temporary order restricting all public entities including national and county governments from engaging external lawyers or private law firms, thereby impacting the Attorney General’s choice of representation. That the aforesaid order was appealed by both the Law Society of Kenya and the Attorney General, but the Court of Appeal declined to stay the order, requiring a full hearing. 7.The 1st Petitioner addresses the importance of complying with constitutional and statutory provisions in his affidavit specifically under Article 10 on national values and principles of governance, emphasising the rule of law, transparency and accountability; Article 157(9) on the independence of the Attorney General which is subject only to the Constitution, the Advocates Act, and professional ethics rules, particularly regarding conflict of interest; Chapter Six of the Constitution on standards of leadership and integrity expected of public officers; and the Advocates Act and Professional Ethics which is the law governing advocates and which requires undivided loyalty to clients, prohibits conflict of interest, either actual or perceived, in legal practice. 8.It is contended that the litigation concerning the divestiture of Safaricom shares is deemed a matter of high public importance, involving public resources and constitutional governance; and that the risk of conflicted counsel acting threatens the integrity of the legal proceedings relating to the matter; public confidence and trust in the justice system; and constitutional adherence and proper regulatory oversight of the financial system. 9.The 2nd Application, is a Notice of Motion by the 1st Petitioner also dated 17th April 2026 and premised under Articles 22, 23, 73, 75 of the Constitution and all other enabling provisions of the law seeking the following ORDERS: -1.A declaration be issued that the participation of Andrew Mukite Musangi, Chairman of the Board of the Central Bank of Kenya, as counsel for Safaricom PLC constitutes a conflict of interest in violation of Articles 10, 73, and 75 of the Constitution.2.An order be issued disqualifying and/or barring the said Andrew Mukite Musangi from acting as counsel for Safaricom PLC in these proceedings or any related matter concerning the disputed transaction.3.A declaration be issued that the issues arising in this matter raise constitutional questions of public importance relating to integrity in public office and regulatory independence.4.Such further or other orders be granted as this Honourable Court may deem just to safeguard constitutional values, public confidence, and the integrity of public institutions.5.Costs of this application be provided for. 10.The Application is also supported by the sworn affidavit of the 1st Petitioner/Applicant TONY GACHOKA, dated evenly with the Application and is founded on the grounds that the Chairman of the Central Bank of Kenya occupies a public office within a key financial regulator exercising oversight over Safaricom PLC’s mobile financial services and acting as counsel for a regulated entity creates both actual and apparent conflict of interest, contrary to Article 75(1) of the Constitution and the Conflict of Interest Act, 2025. 11.It is deposed that a reasonable and fair-minded observer would conclude that there exists a real likelihood of bias, contrary to established legal principles and that such dual role undermines independence of regulatory institutions, public confidence in governance and the integrity of public office. 12.It is deposed in contention that the dispute before the Court implicates public law and constitutional issues, including financial system stability and regulatory oversight, and is not purely commercial. That accordingly, failure by the Court to intervene and halt the legal representation by Mr. Musangi would sanction conduct inconsistent with constitutional standards of leadership and integrity under Chapter Six and it is in the interest of justice that the orders sought be granted. 13.The 3rd Application is a Notice of Motion dated 25th April 2026 premised on Articles 22, 23, 159 and 258 of the Constitution of Kenya, Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the law, filed by the 2nd Petitioner herein Prof. Fredrick Onyango Ogola and supported by his sworn Affidavit dated 27th April 2026. 14.The Applicant seeks the following Orders: -1.Spent2.That pending the hearing and determination of this Application and the Petition herein, this Honourable Court be pleased to issue an order barring, disqualifying, and/or restraining Msangi, Advocate, from appearing, acting, or representing the 6th Respondent, Safaricom PLC, in these proceedings.3.That this Honourable Court be pleased to declare that the participation of a State Officer as counsel for a private entity in proceedings involving public interest and Government shareholding constitutes a conflict of interest and is in contravention of Chapter Six of the Constitution.4.That this Honourable Court be pleased to direct that the issue of conflict of interest and breach of constitutional integrity arising from the conduct of the said State Officer be determined contemporaneously with the Application for conservatory orders.5.That this Honourable Court be pleased to refer the conduct of the said State Officer to the Ethics and Anti-Corruption Commission and the Law Society of Kenya for investigation and appropriate action.6.That costs of this Application be provided for.7.That such further or other orders be made as this Honourable Court shall deem just and expedient in the circumstances. 15.This Application is premised on several grounds, namely: that, the Petition before the Court concerns the divesture of Government’s shareholding in Safaricom PLC a major entity having significant national and economic importance and it raises serious constitutional and ethical concerns about the involvement of a State Officer acting simultaneously in a public and private capacity. That presently, Advocate Musangi represents Safaricom PLC in the case while still being a State Officer, Chairperson of the Central Bank of Kenya’s Board. 16.Several statutory and constitutional provisions are cited in support, in particular, Article 260 of the Constitution which defines who a state officer is; Chapter Six on Leadership and Integrity which mandates avoidance of conflict of interest and mandates integrity; Articles 73 & 75 which prescribe leadership responsibilities and State Officer conduct and the Public Officer Ethics Act and the Leadership and Integrity Act. 17.It is deposed that there exist real, apparent and potential conflicts from Advocate Musangi acting in a private capacity in a matter involving government financial interests because a State Officer is prohibited from engaging in activities that lead to divided loyalty or compromise their integrity. 18.It is contended that there is a heightened duty to uphold public trust and administration of justice by the said advocate and that he is expected to maintain integrity and avoid situations leading to conflict with public duties. 19.The Applicant asserts that the continued participation of the Advocate in the proceedings poses legal and ethical violations, undermining public confidence and judicial integrity. He decries that the issues raised are of intrinsic relevance to the substratum of the Petition and the conservatory orders sought and requires urgent judicial scrutiny to uphold the principles outlined in the Constitution and related statutes. Further it is contended that the present judicial proceedings are at a risk of violating constitutional rule of law and good governance principles and may lack integrity due to the risk of constitutional prejudice and loss of legal and public confidence. Responses 20.The 5th Respondent, the Honourable Attorney General filed a Further Replying Affidavit sworn by the Attorney General, Hon. Dorcas Agik Oduor dated 22nd May 2026 in response to the 1st Application dated 17th April 2026 that seeks the disqualification of Mr. John Ohaga SC as legal counsel representing the 5th Respondent. The said response only addresses the issue of the authority to instruct counsel. 21.It is averred that, having considered the orders issued on 12th January 2026 and the subsequent orders of 30th January 2026 in Nakuru High Court Constitutional Petition No. E001 of 2026, the Attorney General is satisfied that its office is not barred from instructing counsel in the present matter and that the said office bears the lawful authority to instruct Mr. Ohaga SC, pursuant to its constitutional and statutory mandate, to appear and lead the Attorney General’s case in the present proceedings. 22.It is asserted that Mr. Ohaga SC appears in the conduct of the Petition and in opposition to the Application dated 17th April 2026 with the Attorney General’s full knowledge, approval and express authority. 23.In response to the 2nd Application filed by the 1st Petitioner dated 17th April 2026 which seeks the removal/barring of Andrew Mukite Musangi as legal counsel for the 6th Respondent- Safaricom PLC - on the grounds that it constitutes a conflict of interest (that he is also the non-executive Chairman of the Board of Directors for the Central Bank of Kenya-CBK), the 6th Respondent through the firm of Messrs Mukite Musangi & Company Advocates filed a Replying Affidavit sworn by Andrew Mukite Musangi dated 23rd April 2026. 24.The 6th Respondent opposes the Application on several grounds inter alia that the said Andrew Mukite Musangi is an Advocate of the High Court of Kenya practicing in Nairobi and Nakuru holding the position of senior partner at Mukite Musangi & Company Advocates and is also a non-executive Chairman of the Board of Directors, CBK, appointed for a four-year term starting 29th September 2023 as per Section 11 of the Central Bank of Kenya Act, Cap 491. 25.They contend that the Application is misconceived, legally untenable and an abuse of court process because it confuses three key legal concepts being conflict of interest, regulatory authority and constitutional thresholds for disqualification of counsel. 26.It is averred that the disqualification of counsel is an exceptional remedy justified only where either, there is a real, demonstrable conflict, not speculative, or that there is a material risk of misuse of confidential information, or the advocate’s continued participation would prejudice the administration of justice. That accordingly, mere office or professional affiliation does not constitute a conflict of interest. 27.The 6th Respondent contends in deposition that Section 10 of the Central Bank of Kenya Act, Cap 491 outlines the CBK Board’s responsibilities as limited to policy, oversight and governance. That the Board does not undertake operational regulation since regulatory actions are executive functions. As such, that the Chairperson and the Board do not exercise regulatory decision-making over the 6th Respondent while the present petition relates to a purely commercial shareholder-to-shareholder transaction, with no overlap of confidential information between CBK responsibilities and the case. 28.It is pleaded that the Mr. Andrew Musangi advocate has no personal, financial, or proprietary interest in Safaricom PLC the 6th Respondent and that his engagement as a non-executive Chairman of CBK does not restrict legal practice or acting on behalf of any clients. That the firm of Mukite Musangi & Company Advocates was appointed by the 6th Respondent as a public limited company to represent them so that acting as counsel does not create or constitute a conflict with public duties or national governance principles. 29.It is stated that there is no violation of Articles 10, 73, or 75 of the Constitution and that the present Application improperly seeks to transform Chapter Six into a tool for litigation strategy and a mechanism to interfere with a party’s fundamental constitutional right to legal representation of choice. 30.It is asserted that the 6th Respondent has an unfettered constitutional right to legal representation by counsel of its choice, that disqualification by the Court interferes with that right and if allowed would constitute a draconian measure by a court of law, which determination requires a very high threshold that has not been met. 31.The sixth respondent decries the fact that the Applicants have not demonstrated that Advocate Musangi’s conduct in this matter will lead to a miscarriage of justice or any risk of prejudice as against any party. 32.It is further contended that the generalised and hypothetical assumptions by the 1st and 2nd Petitioners do not meet any evidentiary standards of proof and that the Application is premised entirely on speculation, misplaced apprehension and conjecture. 33.It is the 6th respondent’s contention that the Petitioners have expressed various vague and misconceived concerns without any degree of specificity and that the allegations of potential conflict of interest and perceptions of bias are based on a misapprehension of facts or a deliberate scheme to divert the Court’s attention and time from the germane issues in the Petition. 34.The 6th respondent firmly asserts that the allegation that the said advocate’s role undermines independence of regulatory institutions is incorrect because the independence of CBK is institutional, not personal; that the CBK Board does not adjudicate shareholder divestiture disputes such as this and that there is no pending or contemplated CBK regulatory action relating to this transaction, rendering the argument about regulatory independence abstract, unsupported and legally irrelevant. 35.In response to the 3rd Application filed by the 2nd Petitioner, the 6th Respondent filed Grounds of Opposition dated 12th May 2026 raising several grounds which can be summarized as follows: that the Motion is fundamentally flawed as it is factually misconceived, legally incompetent, speculative and an abuse of court process. It is urged that the Motion lacks any factual or legal foundation for disqualifying counsel for the 6th Respondent. 36.The 6th Respondent contends that the Applicant misapprehends Article 260 of the Constitution by wrongly categorizing Mr. Andrew Mukite Musangi as a State Officer, whereas his position is not among those expressly listed under Article 260, making Chapter Six provisions inapplicable. 37.It is further contended by the 6th respondent that the Applicant has not demonstrated any actual or apparent conflict of interest, bias or breach of Chapter Six and that the claim fails to meet the standards under Section 8 of the Conflict-of-Interest Act, 2025 and the Code of Standards of Professional Practice and Ethical Conduct, 2016. 38.Additionally, it is urged that the Application seeks to unjustifiably interfere with the 6th Respondent’s constitutional right to legal representation and choice of counsel, without demonstrating any prejudice that would result from Mr. Musangi’s continued representation of the 6th respondent. 39.It is also the 6th respondent’s position that disqualification of counsel is an exceptional remedy reserved for clear cases involving real prejudice, conflict of interest, breach of confidentiality or threat to justice, none of which have been proven in the present case. That instead, the Motion is based on conjecture and unsupported allegations, seemingly intended to embarrass and intimidate counsel, disrupt proceedings and delay fair determination of the Petition. 40.It is asserted that the Application fails to disclose any reasonable cause of action against Mr. Musangi, that it is bad in law and should be dismissed with costs to the 6th Respondent. 41.The three Applications were canvassed by way of written submissions which are now on record and summarised below. The 1st Petitioner’s Submissions 42.Counsel for the 1st Petitioner filed submissions dated 17th April 2026 in respect of the Application for the disqualification of Mr. John Ohaga SC as lead legal counsel instructed by the Attorney General. The following issues for determination were framed:i.Whether the participation of the said counsel creates a real, reasonable, or apparent conflict of interest;ii.Whether procurement and appointment of external counsel by State organs must comply with constitutional and statutory thresholds;iii.Whether the impugned appointment violates Articles 10, 73, 75 and 157(9) of the Constitution; andiv.Whether this Court should intervene in the public interest. 43.It is submitted that the legal standard of conflict of interest extends beyond demonstrating actual bias to include real, reasonable, or apparent conflict or divided loyalties, grounded in constitutional values of integrity, transparency and accountability under Articles 10, 73, 75 of the Constitution. 44.Counsel submitted that Mr. John M. Ohaga, SC, holds a governance role as Chairman of the M-Pesa Foundation, which is intricately linked to Safaricom PLC on the one hand; and that Safaricom is a strategic national asset in telecommunications and financial services with economic and public interest implications on the other hand, whose sale of 15% of its stake to Vodacom Group, a foreign investor, potentially affects corporate control and economic sovereignty. 45.It is urged that Mr. Ohaga’s dual role poses a credible risk of divided loyalty, compromising fiduciary duties and public trust. Counsel cites the cases of Trusted Society of Human Rights Alliance v Attorney General & 2 Others where it was held that conflict includes appearance and likelihood, not just actual bias; Mumo Matemu (Interested Party) [2012] eKLR; [2012] KEHC 2480 (KLR) (High Court at Nairobi, Petition No. 229 of 2012, Judgment delivered on 20 September 2012) and R v Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, Supreme Court of Canada, (decided 1 November 2002) where the courts held that strict duty of loyalty requires avoiding conflicts unless full disclosure and consent are obtained. 46.The case of Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222 (House of Lords, United Kingdom) is cited, where the House of Lords is said to have held that courts should focus on the risk of conflict itself, regardless of evidence of misuse of confidential information alongside the fiduciary principle from Ex parte James (1803) which reinforces that one cannot simultaneously act where personal interests conflict with duties. 47.On the second issue, it is submitted that the procurement of external legal services by public entities must comply strictly with constitutional principles of fairness, transparency, accountability, equity and good governance under Article 10 of the Constitution and statutory requirements including compliance with the Public Procurement and Asset Disposal Act, 2015. That, at the same time, that public interest and Constitutional Supremacy demand that all state organs and actions must operate within the limits of the Constitution, underscoring the rule of law and public confidence in governance. 48.The case of Republic v Public Procurement Administrative Review Board & 2 Others ex parte Noble Gases International Limited [2015] eKLR; [2015] KEHC (Judicial Review Case No. 413 of 2014, by the High Court at Nairobi, is cited in support where it is said to have been held that procurement is a constitutional process requiring adherence to set principles. Counsel also cites the cases of Republic v Attorney General & Others ex parte Transcend Media Group [2015] eKLR; [2015] KEHC (Judicial Review Application No. 29 of 2015 where the court is said to have stated that state organs are subject to judicial review over procurement; Pelt Security Services Limited v Public Procurement Administrative Review Board & Another [2018] eKLR; [2018] KEHC (High Court at Nairobi, Judicial Review Application No. 123 of 2018) for the proposition that procurement processes must be transparent, competitive and compliant with the law; and the Supreme Court’s decision in Speaker of the Senate & Another v Attorney General & 4 Others [20131 eKLR; [20131 KESC 6 (KLR) (Supreme Court of Kenya, Advisory Opinion No. 2 of 2013, delivered on 11 December 2013) where the court is said to have held that no authority is above the Constitution and that contraventions are invalid. 49.Counsel supports the third issue with submissions that the appointment of TripleOKLaw LLP and Mr. Ohaga as external counsel must be justified under the above principles, given that the transaction involves a strategic transfer of national assets to foreign investors, affecting public finance and sovereignty. He cited an interim order by the Nakuru High Court in Petition No. E001 of 2026 which restrained public entities from engaging external counsel pending determination and which order the Court of Appeal is said to have refused to stay in Civil Application No. E014 of 2026, thereby reinforcing the necessity of strict compliance. 50.It is submitted that the order in Nakuru High Court prohibited public entities from engaging external legal counsel in matters relating to the Safaricom share sale pending substantive litigation and emphasised the need for accountability, prudence in the use of public funds and transparency under Article 10 of the Constitution. The Supreme Court decision in Gatirau Peter Munya v Dickson Mtvenda Kithinji & Others (2014) eKLR is also cited in which the apex court is said to have affirmed the binding nature of conservatory orders until they are set aside, noting their public law character. Counsel urges that the Attorney General and the Law Society of Kenya failed to secure a stay of the interim order from the Court of Appeal, meaning the order remains binding. 51.Further submission is that failure to comply with court orders is inimical to the rule of law as was held in Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR; [2013] RECA (Civil Appeal No. 196 of 2013. That therefore, Mr. Ohaga’s continued representation of the Attorney General is prima facie unlawful and undermines judicial authority and public confidence. The 2nd Petitioner’s Submissions 52.The 2nd Petitioner’s submissions are dated 25th April 2026. He submits on four main issues as follows:i.Whether a State Officer is permitted to act as counsel for a private entity in proceedings involving public interest and Government financial stake;ii.Whether such representation gives rise to a real, apparent, or potential conflict of interest;iii.Whether the threshold for disqualification of counsel has been met; andiv.Whether this Honourable Court should grant the reliefs sought. 53.It is submitted that the Application is grounded in multiple constitutional Articles, including but not limited to Article 10 on integrity, transparency, accountability as national values; Article 73 (1) (a) on respect of public office as a public trust; Article 73 (2) (b); Article 75(1); Article 201; Article 227 and Article 232 of the Constitution together with the principles in Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR, where the Court is said to have held that Chapter Six sets enforceable constitutional standards, not mere aspirations. 54.It is submitted that these provisions collectively establish that State Officers hold public trust and are required to avoid conflicts between personal and public interests. Sections 16 & 26 of Leadership and Integrity Act, 2012; Sections 12 & 13 of Public Officers Ethics Act; Advocates (Practice) Rules together with the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR are all cited to anchor the arguments on conflict of interest. 55.On the second issue, it is submitted that the law recognises three types of conflict being Actual Conflict which is direct conflict between duties and interests and a ground for mandatory disqualification; Potential Conflict which entails possible future conflict and which is sufficient for precautionary action; and Apparent Conflict which is perception or appearance of conflict and which latter requires that courts intervene to maintain public trust. That accordingly, apparent conflict alone suffices to disqualify counsel where the public interest is at stake as was held in the cases of Republic v IEBC ex parte Coalition for Reform and Democracy (CORD) [2017] eKLR and Kenya Pipeline Company Ltd v Glencore Energy (UK) Ltd [2015] eKLR. 56.Prof. Ogola argues that the Advocate, Mr. Andrew Mukite Musangi is also the Chairperson of the Central Bank of Kenya Board, qualifying as a State Officer under Article 260 of the Constitution and that such positions create heightened fiduciary and ethical responsibilities, requiring avoidance of conflicts. That therefore, representing a private corporate entity (Safaricom PLC) in matters involving Government shareholding leads to divided loyalty, risking compromised independence, potential access to privileged information pertaining to Government financial affairs and erosion of public confidence in institutional neutrality. 57.The 2nd Petitioner asserts that the cited judicial authorities reinforce that both actual and perceived conflicts of interest are grounds for intervention and that public finance matters require stringent adherence to constitutional standards of transparency and integrity. 58.On the third issue, it is submitted that the principles governing disqualification are well settled as follows: Protection of the integrity of judicial proceedings; Preservation of public confidence in the administration of justice; and Avoidance of real or perceived prejudice. The case of Delphis Bank Ltd v Channan Singh Chatthe [2005] eKLR is cited where the court is said to have held that the court had inherent jurisdiction to prevent abuse of its processes including instances of conflict, 59.The aspect of constitutional supremacy and public interest are also submitted upon where it is urged that Article 1 of the Constitution vests sovereignty in the people so that any process affecting public interest must attain the highest standards of transparency and integrity. The case of Okiya Omtatah Okoiti v Cabinet Secretary, National Treasury & 3 Others [2020] eKLR is relied on to support the argument that matters relating to public finance decisions must be scrutinised. 60.It is the 2nd Petitioner’s submissions that the threshold for disqualification of counsel has been met because the issue before Court is not merely professional propriety but a constitutional integrity question at the intersection of public office, private interest and judicial process. It is argued that allowing the Advocate to continue with representation in the present case will violate Chapter Six of the Constitution, create an irreconcilable conflict of interest and undermine constitutional governance, justice and integrity. Disqualification by the court is urged to maintain judicial process integrity. The 5th Respondent’s Submissions 61.Counsel for the 5th Respondent filed submissions dated 22nd May 2026 on behalf of the 1st, 2nd, 3rd, 4th, 5th, 9th, 10th & 11th Respondents. On their behalf, the Principal State Counsel Mr. Christopher Marwa submits that the Applicant’s Notice of Motion seeks two primary orders being: restraining Mr. John M. Ohaga, SC and/or TripleOKLaw LLP from representing the Attorney-General or any State organ in proceedings concerning the proposed shares divestiture of Safaricom PLC or related litigation; and declaring the Nakuru High Court ruling of 12th January 2026 as a binding judgment in rem applicable to all persons and entities. 62.Counsel submits that the Applicant’s application is incompetent, legally unsustainable and lacking evidential basis. It is argued that the motion improperly seeks judicial pronouncements on matters from a different High Court division and ignores subsequent variations of the Nakuru ruling. Additionally, that the Application fails to meet the Kenyan legal threshold for disqualification of counsel. 63.Counsel isolates four Issues for determination being:i.Whether prayers 1 and 2 of the Notice of Motion are legally competent;ii.Whether the Applicant has established any legal basis for disqualifying Mr. John M. Ohaga, SC and/or TripleOKLaw LLP from acting for the Attorney-General and/or any State organ in these proceedings or in any alleged related proceedings.;iii.Whether the Applicant’s additional arguments on constitutional procurement and the Nakuru proceedings advance the application any further; andiv.What orders ought to be made as to disposal of the application and costs. 64.It is submitted that prayer 1 seeking to restrain Mr. John M. Ohaga, SC and/or TripleOKLaw LLP from acting or representing the State is incompetent and defective because neither Mr. Ohaga nor TripleOKLaw LLP is a party to the petition as guided by the case of Samuel Ngigi Wahogo & 4 others v Attorney General & 2 others; Samuel Chege (Interested Party) [2019] KEELC 3644 (KLR) and that the prayer violates fair hearing rights under Article 50 (1) and the audi alteram partem rule. 65.Further submission is that prayer 2 which seeks to declare Nakuru High Court ruling dated 12th January 2026 as a binding judgment in rem, thereby binding on all entities is jurisdictionally improper because the High Courts cannot annul, supervise, or declare rulings of other concurrent jurisdiction courts as binding under Kenyan law as was held in Wanyama v Chief Justice of Kenya & 4 others; Director of Public Prosecution & another (Interested Parties) [2026] KEHC 529 (KLR), and emphasized by the Court of Appeal in Peter Ng’ang’a Muiruri v Credit Bank Limited & 2 others [2008] KECA 263 (KLR) and in Uhuru Highway Development Limited v Central Bank of Kenya & 2 others [1996] KECA 102 (KLR). 66.That further, the said prayer misreads the nature and status of the Nakuru High Court orders and Section 44 of the Evidence Act and ignores their review and variation on 30th January 2026 in Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026) [2026] KEHC 902 (KLR). That consequently, the ex-parte orders of 12th January 2026 which the Applicants rely on are interlocutory and cannot be converted to a final judgment in rem. 67.It is submitted that the Applicant alleges a potential conflict of interest based on Mr. Ohaga’s governance roles at the M-Pesa Foundation and TripleOKLaw’s prior association with Safaricom PLC but does not demonstrate that there exists a specific or direct lawyer-client relationship between the Applicant and Mr. Ohaga or TripleOKLaw. That further, no confidential information allegedly imparted or misused, has been identified by the Applicant. 68.Citing Imperial Bank Limited (In Receivership) & another v Popat & 18 others [2025] KECA 1013 (KLR) and Delphis Bank Limited v Channan Singh Chatthe & 5 others [2006] KECA 295 (KLR), (Delphis Bank Test), it is submitted that the Court must find real mischief or prejudice to disqualify counsel. 69.That accordingly, vague, unsubstantiated public confidence arguments or reputational associations are insufficient to meet the high evidential standard for disqualification as demonstrated in King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd) & another v M/s Kaplan & Stratton Advocates [1993] KECA 57 (KLR). On the comparative foreign jurisprudence cited by the Applicant in R. v Neil (20020 SCC 70, and Canadian National Railway Co. v McKercher LLP, 2013 SCC 39 which concern the duty of loyalty owed to current clients and the bright-line rule applicable where immediate legal interests of current clients are directly adverse, it is submitted that the strict rules on current client adversity do not exist here. 70.Counsel further cites Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 and King Woolen Mills Ltd (formerly known as Manchester Outfitters Suiting Division Ltd) & another v M/s Kaplan & Stratton Advocates [1993] KECA 57 (KLR) and submits that it relates to former-client confidentiality cases where a lawyer or professional adviser who formerly acted for one client may later act against that former client while holding relevant confidential information. That in this case, there is no former-client relationship between the Applicant and the impugned counsel pleaded and that therefore there is no identified confidential information said to be at risk. 71.In addition, it submitted that the Applicants’ reliance on Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party) [2012] KEHC 2480 (KLR) is misplaced because they did not entail a counsel disqualification case. That as such, no probative evidence exists to justify the removal of Mr. Ohaga or TripleOKLaw. 72.On the third issue of procurement and Public Law, Counsel submits that the Applicants invoke public procurement decisions in Republic v Public Procurement Administrative Review Board & 2 Others ex parte Noble Gases International Limited [2013] eKLR; Republic v Attorney General & 3 Others ex parte Transcend Media Group Limited [2015] eKLR; Republic v Public Procurement Administrative Review Board & Another ex parte Pelt Security Services Limited [2018] eKLR and Speaker of the Senate & Another v Attorney General & 4 Others [2013] KESC 6 (KLR) arguing illegality in the appointment of external counsel but counter this with the argument that these authorities do not address advocate disqualification or the instant procedural relief sought. 73.In line with the above, counsel submits that even if the engagement of external legal services by a public body can be challenged on procurement or public-law grounds in an appropriate case, such a challenge must still be built on evidence concerning the specific retainer under attack. However, in the present case, it is submitted that no procurement documents, letters of instruction, retainer contracts, fee notes, or approval instruments have been produced or alleged. 74.It is submitted that the Attorney-General’s constitutional role under Article 156 (4) of the Constitution and statutory mandate under Section 25(2) of the Office of Attorney-General Act, lawfully empower engagement of external counsel where reasonably necessary. That a public procurement challenge requires evidence of the specific procurement, proper parties and factual record, none of which exist here. Counsel submits that if accepted, the Applicant’s approach would allow litigants to disqualify counsel based on mere public commentary or dissatisfaction which is not the test and that the existing legal framework confirms external counsel engagement is legitimate and lawful, negating overbroad claims against Mr. Ohaga’s retention. 75.It is submitted that reference to the Nakuru Proceedings are selective, misleading and constitute an overreach. Counsel decries that the Applicants selectively cite the interim ex-parte orders of 12th January 2026 from Nakuru High Court Petition E001 of 2026 as final and binding. That unspecified in the Applicant’s submissions is the subsequent review ruling of 30th January 2026 which modified, varied and qualified the earlier orders to avoid prejudice to non-parties. Counsel asserts that the Nakuru High Court mandated a qualified suspension regime on engagements of external counsel by public entities after 12th January 2026, including formal approval by the Attorney-General. That as such, the ex-parte 12th January 2026 Orders were not final judgments in rem and thus cannot be declared as such or be effectively extended by another court. 76.Counsel submits that the Applicant has neither proved the retainer in question arose after 12th January nor that the Attorney General lacked necessary approvals or justifications under the modified regime. That the Applicant’s reliance on the Court of Appeal’s refusal to stay the Nakuru orders is misplaced as the refusal confirmed the varied orders, not the superseded original ex-parte orders. 77.Counsel also submits that the Advocates (Practice) Rules at Rule 8, which addresses advocates as necessary witnesses, does not assist the Applicants because it is not specified which grounds/issues Mr. Ohaga is a required witness or why his testimony would be relevant to any issue. The case of Tom Kusienya & others v Kenya Railways Corporation & others [2013] KEHC 7017 (KLR) is cited in support of the proposition that it is not necessary to bar advocates from representation unless clear contemporaneous requirement for their testimony exists. 78.On the issues of Public Interest and Administration of Justice, Counsel submits that the Respondents acknowledge the public importance of Safaricom divestiture but emphasise that public interest does not lower legal or evidential thresholds in professional disqualification of counsel. Counsel argues that removing counsel without evidence undermines public confidence in justice administration and submits that courts must apply correct legal tests and resist intervention based on rhetoric or general apprehension. It is urged that this Court ought to strike out and/or dismiss the entire Notice of Motion of 17th April 2026 with costs or alternatively, uphold the Preliminary Objection, and strike out prayers 1 and 2 as incompetent as well as dismiss the remainder for lack of legal and evidential foundation. Analysis and Determination 79.We have considered the three applications, the responses thereto and the rival submissions for and against the grant of the orders sought. The main issue for my determination is whether the Applications are merited. To further determine this, we have isolated the following sub-issues for determination:i.Whether there exists a conflict of interest in Mr. John. M. Ohaga, SC representing the 5th Respondent, the Attorney General as external counsel in the Petition before Court?What is the distinction between the fiduciary duty of a director/chairman and the role of an advisor acting in their professional capacity? ii.Does the Ruling in Nakuru Pet E001 of 2026 affect the 5th Respondent in appointing legal counsel?iii.Whether there exists a conflict of interest in Mr. Andrew Mukite Musangi representing the 6th Respondent, Safaricom PLC, as legal counsel in the Petition before Court? Who is a state officer? What are the roles of the CBK Board and its non-executive chairman? Whether participation of a state officer as legal counsel for a private entity in a Petition involving public interest and government shareholding constitutes a conflict of interest and contravenes Chapter 6 of the Constitution? iv.What orders should this Court make andv.Who bears the costs of this Application? 80.The consolidated Petitions before this Court challenges the legality of the government’s sale of a 15% shareholding in Safaricom PLC to Vodacom Group. The petition raises multiple constitutional questions about public procurement, conflicts of interest, data sovereignty and governance. 81.The three Applications by the 1st and 2nd Petitioners specifically seek court orders restraining or barring Mr. John M. Ohaga, SC, FCIArb, and/or TripleOKLaw LLP as well as Mr. Andrew Musangi from representing the Attorney General or any State organ and Safaricom PLC in matters relating to the contested Safaricom share divestiture. 82.The crux of the Applications hinges on constitutional principles of transparency, conflict of interest, accountability, integrity and strict adherence to procurement laws to safeguard public interest. The applications highlight the necessity of clear separation between public office duties and private interest to maintain governance standards and public trust in legal processes. 83.On the question of whether there exists a conflict of interest in Mr. John M. Ohaga, SC representing the 5th Respondent, the Attorney General as external counsel in the Petition before Court, the 1st Petitioner, Tony Gachoka resolutely asserts the necessity for judicial restraint to prevent the allegedly conflicted Senior Counsel John Ohaga from representing the Attorney General in matters involving Safaricom’s divestiture. He unequivocally states that judicial intervention is posed as fundamental to upholding constitutional principles, maintaining the rule of law and protecting public interest in this sensitive litigation. 84.In his affidavit in support of the Application and ultimately his submissions, the 1st petitioner underscores the paramount importance of ethical legal representation, free from actual or perceived conflicts, particularly in litigation that influences public resource management and governance credibility. He implores this court to intervene to restrain the participation of Senior Counsel John Ohaga in the present proceedings in a bid to preserve constitutional compliance and governance standards, integrity and fairness of public interest litigation, public confidence in the justice system and avert potential constitutional and statutory violations. 85.He further argues that representation of the Attorney General must be free from any perception or existence of conflict of interest or impropriety, especially given the matter’s public and constitutional significance. He states that the past associations of Senior Counsel Ohaga’s involvement with Safaricom-related entities creates a reasonable apprehension of bias and conflict of interest that undermine leadership integrity due to potential compromise in fiduciary duties and professional ethics, thereby creating real or perceived conflicts. 86.Overall, the 1st Application for removal of John Ohaga SC posits that this legal representation violates constitutional and statutory provisions owing to alleged conflict of interest and procedural irregularities in his procurement. 87.In the response filed by the Honourable Attorney General, she asserts that she is well aware of the decision in Nakuru High Court and had through proper counsel established that the same does not bar her or her office from engaging the services of a legal counsel. That at the same time, Senior Counsel John Ohaga is in conduct of the matter with the express approval and authority of her office. 88.We have considered what conflict of interest entails. Black’s Law Dictionary 10th Edition defines conflict of interest as -:“ 1.A real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties. 2.A real or seeming incompatibility between the interests of two of a lawyer’s clients, such that the lawyer is disqualified from representing both clients if the dual representation adversely affects either client or if the clients do not consent”. 89.In The Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, 2017, Gazete Notice No. 5212 defines conflict of interest at Paragraph 93 as follows: -“A conflicting interest is an interest which gives rise to substantial risk that the Advocate’s representation of the client will be materially and adversely affected by the Advocate’s own interests or by the Advocate’s duties to another current client, former client or a third person.” 90.The aforesaid Law Society of Kenya Code further highlights situations where conflict of interest might arise at paragraph 96 as follows: -a)Where the interests of one client are directly adverse to those of another client being represented by the Advocate or the firm, for instance in situations where the representation involves the assertion of a claim by one client against another client;(b)Where the nature or scope of representation of one client will be materially limited by the Advocate’s responsibilities to another client, a former client, a third person or by the personal interests of the Advocate;(c)Where in the course of representing a client there is a risk of using, wittingly or unwittingly, information obtained from a current or former client to the disadvantage of that other client or former client. 91.In Serve In Love Africa (Sila) Trust v David Kipsang Kipyego & 7 others [2017] KEELC 3632 (KLR) Ombwayo J persuasively described conflict of interest as follows; -“A conflict of interest may be described also as a conflict of duties or a conflict between interests or as a conflict between interest and duty. All these ways pick up different aspects of the three main ways in which the problem can arise. To act when you have a conflict of interest involves breaching your fiduciary duty to your client or former client. This is the basis of the conflict-of-interest problem.” 92.From the above authorities, and considering the grounds of the 1st Application by the 1st Petitioner for removal of Mr. Ohaga SC, we note that the alleged conflict of interest is said to exist because he holds the position of Board Chairman of the M-Pesa Foundation which is an affiliate of the Safaricom PLC and that he has also handled commercial matters on behalf of Safaricom. That because of this, there exists an overlap of his fiduciary duties as a chairman and the advisory role as legal counsel in the Safaricom divestiture. 93.Our view of the above is that Safaricom PLC the 6th Respondent herein and Safaricom M-Pesa Foundation where the advocate holds chairmanship position are two separate entities. Thus, the alleged fiduciary duties are only applicable to the M-Pesa Foundation itself and not Safaricom PLC as the parent entity. The present Petition entails the latter, in which Mr. Ohaga SC presently holds no position. 94.We observe that Mr. John Ohaga SC did not deny that either his firm TripleOKLaw or himself have represented Safaricom in commercial disputes. In the present proceedings, Mr. Ohaga, SC /TripleOKLaw are in conduct of the matter as representatives for the 5th Respondent, the Attorney General. To our mind, there is nothing barring the said counsel from representing the said party since it is clear that the former and the present client are on the same side in these proceedings and both are appearing as Respondents. 95.This Court does not foresee a scenario where the said counsel may divulge Safaricom’s PLC confidential information to the 5th respondent, and vice versa, to the detriment of either of the two respondent parties to these proceedings, when the two respondents are advancing the same argument in favour of the Government’s divesture of 15% of its shareholding in Safaricom PLC. We find that the fact that Mr John Ohaga, SC has previously represented Safaricom PLC does not bar him from representing another party in a matter where Safaricom is also a party, more so, where the two are on the same sides of the divide and advancing the same cause. 96.Moreover, the Court of Appeal in Delphis Bank Ltd v Channan Singh Chatthe & 6 Others [2005] eKLR concisely guided on various scenarios in which conflict of interest may arise and stated that: -“The starting point is, of course, to reiterate that most valued constitutional right to a litigant; the right to a legal representative or advocate of his choice. In some cases however, particularly civil, the right may be put to serious test if there is a conflict of interests which may endanger the equally hallowed principle of confidentiality in advocate/client fiduciary relationships or where the advocate would double up as a witness. There is otherwise no general rule that an advocate cannot act for one party in a matter and then act for the opposite party in subsequent litigation. The test which has been laid down in authorities applied by this Court is whether real mischief or real prejudice will in all human probability result….each case must turn on its own facts to establish whether real mischief and real prejudice will result. In this case, we hardly have any facts to consider in arriving at such a conclusion.” 97.Accordingly, we are not persuaded that the applicants have made out a case that point to a real or perceived conflict of interest in Mr. John Ohaga SC representing the Attorney General. 98.We now proceed to determine the second sub issue of whether the decision in the High Court at Nakuru in Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026) [2026] KEHC 902 (KLR) (30 January 2026) (Ruling) has an effect on the present issue of legal representation. The 1st Petitioner contends that the decision by the learned judge at Nakuru High Court underscored the need for strict adherence to constitutional and statutory requirements in engaging external counsel and that the Court also barred all public entities from hiring external lawyers or private law firms. He further asserts that the Court of Appeal declined to stay the said Orders and urged that as the matter awaits full adjudication, that decision is binding on this Court. 99.In the case of Gikenyi B & 6 others v Council of Governors & 68 others; Office of the Auditor General & 2 others (Interested Parties) (Petition E001 of 2026) (supra), the High Court at Nakuru referenced its Ruling dated 12th January 2026 where it issued several interim orders including conservatory orders at paragraph 1 as follows: -“e)A conservatory order is hereby issued suspending the engagement, procuring, continuing to procure, pending payments, all engagements of private advocates/law firms by all public entities when there is already hired attorney general, state counsels, solicitor general, county attorneys, county legal counsels, legal officers & legal personnel of all public entities pending the hearing and determination of this Application and the petition.f).A conservatory order is hereby issued directing the controller of budget and all public servants (whether state officer or public office(r) or any person Not to approve any vote/funds for acquisition of external legal services/advocates/firms for all Public entities, pending the hearing and determination of this Application and the petition.” 100.After an application seeking to vacate and set aside the aforesaid orders which had been issued exparte, the learned Judge varied the said Orders at paragraph 85 detaining the specific variations. In particular, the learned Judge held inter alia as follows:A.A conservatory order is hereby issued as from 12th January 2026, suspending the fresh engagement, procuring, continuing to procure, or engagements of private advocates/law firms by all public entities when there is already hired attorney general, state counsels, solicitor general, county attorneys, county legal counsels, legal officers & legal personnel of all public entities pending the hearing and determination of this Application and Petition unless;i.The public bodies falling within the National Government and Public Service Commission has obtained the express and Formal Approval of the Hon. Attorney General for the specific engagement(s), procurement, continuing procurement, or engagement(s) of private advocates/law firms from the 12th January 2026 pending hearing and determination of the Application.ii…B.A Conservatory Order is hereby issued, directing the Controller of Budget and all public servants (whether state officer or public officer(s) or any person authorized in this regard, Not to approve any vote/funds for acquisition of external legal services/ advocates/firms from the 12th January 2026 for all Public entities pending the hearing and determination of this Application and Petition unless the following institutional-specific conditions are fully met and discharged.;i.An express and formal Approval of the Hon. Attorney General for the specific engagement(s), procurement, continuing procurement, or engagement(s) of private advocates/law firms from the 12th January 2026;ii…C.The Conservatory Orders herein shall not affect any procurement, instructions or undertakings for provision of external legal services to public bodies made prior to the 12th January 2026. 101.Our understanding of the above orders, which the Court of Appeal declined to lift on appeal is that they, material to these proceedings, apply to public bodies falling within the National Government and Public Service Commission who intend to procure legal services from external counsel not employed within their respective state departments or public bodies or at the State Law Office. The question is whether these orders apply to the Attorney General especially where it is the Attorney General from whom such authorization should be obtained, and who finds it necessary to engage such services for the legal representation in litigation against the Government, where the Attorney General is also made a primary party to those proceedings. Put differently, were the said orders directed at the 5th Respondent the Attorney General? 102.This court appreciates that the orders in issue were meant to cushion the imprudent use of public money by public bodies and agencies at both the National and the County Governments levels. We however, do not agree that the orders were a bar to the Attorney General, from, out of necessity, to engage an external counsel to represent the National Government. Further, the said Ruling stipulates that bodies falling under the PSC have no authority to instruct external counsel, without authority of the Attorney General. The AG does not fall within the ambit of the Public Service Commission because under Article 156 of the Constitution, the office of the AG is established as a state office and the office holder is nominated by the President and approved by the National Assembly. 103.Public Service Commission on the other hand which is the target body of the Ruling in Nakuru Petition No. E001 of 2026 is established under Article 233 of the Constitution with its functions outlined under Article 234. It bears the mandate of overseeing the human resource management and discipline of the public service, excluding State officers like the AG. 104.It is for this reason that we concur with the 5th Respondent in their Grounds of opposition to the Application that the said Ruling was not directed at the Attorney General. Even if that were not to be the case, the ruling was clear that it is the Attorney General who has the mandate to authorise the appointment of external counsel. Additionally, it has not been demonstrated that the Attorney General abused her powers in seeking external legal counsel to support her office in providing legal representation in this matter which the National Government is heavily involved in defending the divesture. 105.In the end, we find that it was not established that the 5th Respondent was not vested with both the statutory and legal authority to procure and retain the services of external counsel, in this case, the firm of Triple OKLAW Advocates and specifically Senior Counsel John Ohaga, to be part of the legal team to represent the Attorney General in these proceedings where the Attorney General is a respondent. 106.On the cited constitutional underpinnings employed to back up the 1st petitioner’s arguments against the representation of the 5th Respondent by Mr. Ohaga, SC, Article 10 on national values and principles of governance is cited as being potentially undermined alongside the independence of the Attorney General under Article 156. We are however, unable to find any cogent evidence adduced by the Petitioners to demonstrate violation of the said provisions of the Constitution and statute. We equally find no reason or legal justification to interfere with that retainer. 107.On to whether there exists a conflict of interest in Mr. Andrew Mukite Musangi representing the 6th Respondent, Safaricom PLC, as legal counsel in the Petition before Court the 2nd and 3rd Applications specifically challenge the involvement of Mr. Andrew Musangi Advocate, who is also alleged to be a State Officer in his current tenure as non-executive chairman of the CBK Board, representing Safaricom PLC, raising constitutional issues on integrity, conflict of interest and propriety in public office. 108.It is the 1st and 2nd Applicants’ argument that Mr. Musangi’s dual roles in corporate governance and litigation create overlapping fiduciary interests that challenge the impartial administration of justice. Both petitioners/ applicants assert that compliance with the constitutional mandate for transparency, accountability and integrity demands clear separation and avoidance of conflicts. 109.They refer to the Nakuru High Court Orders restricting external lawyers, stating that the said Ruling represents an institutional check ensuring constitutional and statutory adherence in government legal engagements. They submit that the lack of intervention by this court risks sanctioning legal conduct inconsistent with constitutional standards of leadership under Chapter Six. 110.The 3rd Application by Prof. Ogolla raises constitutional questions on the interface between public office and private interests, emphasizing that the involvement of a State Officer as private counsel in litigations affecting Government assets poses an unresolvable conflict of interest and that the only way to safeguard constitutional supremacy is through judicial intervention to correct and prevent breaches of public ethics. 111.A key issue raised in the grounds of opposition filed by the Respondents in response to these Applications is that the orders in Nakuru High Court were interlocutory, ex-parte orders which cannot crystallise into final judgments in rem and cannot be treated as such. The 6th Respondent argues that disqualification of counsel requires proof of actual or potential conflict causing real mischief or prejudice and that generalized assertions are insufficient. 112.The 5th Respondent on its part asserts that the Attorney-General’s statutory mandate explicitly permits engagement of external counsel where reasonably necessary and that procurement and public law challenges must be fact-specific and filed against proper parties with proper evidence such that generalized claims fail. It is their position that upholding the motion risks undermining legal clarity, fair process and public confidence in judicial administration of high-profile, complex litigation. 113.From these rival arguments, it is important to establish who a state officer is. Article 260 of the Constitution defines a state officer as follows: -“State officer" means a person holding a State office. The said Article further defines a state office as follows: -"State office" means any of the following offices—(a)President;(b)Deputy President;(c)Cabinet Secretary;(d)Member of Parliament;(e)Judges and Magistrates;(f)Member of a commission to which Chapter Fifteen applies;(g)Holder of an independent office to which Chapter Fifteen applies;(h)Member of a County Assembly, Governor or Deputy Governor of a county, or other Member of the Executive Committee of a county government;(i)Attorney-General;(j)Director of Public Prosecutions;(k)Secretary to the Cabinet;(l)Principal Secretary;(m)Chief of the Kenya Defence Forces;(n)Commander of a service of the Kenya Defence Forces;(o)Director-General of the National Intelligence Service;(p)Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or(q)an office established and designated as a State office by national legislation; 114.The Leadership and Integrity Act defines a state officer as "State officer" has the meaning assigned to it under Article 260 of the Constitution. 115.We have perused the Central Bank of Kenya Act and we are unable to find any provision that designates the nonexecutive Chairman as a state officer. Neither is Central Bank of Kenya an Independent Office under Chapter Fifteen of the Constitution. Thus, the chairmanship of the Central Bank of Kenya Board is not a state office as defined under the Constitution or legislation. It was therefore incumbent upon the 2nd Petitioner to adduce evidence to show that the office of a non-executive chairman of Central Bank of Kenya is an office established and designated as a state office by national legislation, as contemplated in Article 260 of the Constitution. No such evidence was availed to this Court. 116.We have also considered the role of the CBK Board and its chairperson vis-à-vis the mandate of CBK as a regulator. Section 10 of the CBK Act, Cap 491 stipulates: -10.Board of DirectorsThere shall be a Board of Directors of the Bank, constituted as provided in section 11 which shall, subject to the provisions of this Act, be responsible for—a.determining the policy of the Bank, other than the formulation of monetary policy;b.determining the objectives of the Bank, including oversight for its financial management and strategy;c.keeping under constant review the performance of the Bank in carrying out its functions;d.keeping under constant review the performance of the Governor in discharging the responsibility of that office;e.keeping under constant review the performance of the Governor in ensuring that the Bank achieves its objectives;f.determining whether the policy statements made pursuant to section 4B are consistent with the Bank’s primary function and policy objectives under section 4; andg.keeping under constant review the use of Bank’s resources. 117.Thus, the Board’s role is predominantly policy and oversight of the Bank. Under Section 12, the Chairperson of the CBK Board has a leadership and facilitative role, distinct from the Governor who is the Chief Executive Officer. The role of the chairman of the Board are on corporate governance and entail inter alia, the presiding over meetings, board leadership and providing strategic direction to ensure the Board functions effectively. 118.The daily operations of the CBK which include regulator functions are not within the purview of the chairperson’s role, but are vested in the Governor who runs CBK as its Chief Executive Officer. The import of this is that, the likelihood of a potential of conflict arising in a person who holds a dual role of a non-executive chairperson and a legal counsel such as Mr. Musangi herein is unlikely where the substratum of a cause entails a regulatory affair. This is because, his role as a legal advisor in his professional capacity as external counsel is distinct from the non-executive chairmanship role which is not only fiduciary in nature but is centered on corporate governance and not regulatory affairs. 119.To expound further, we appreciate that such an officer plays both a governance role and a professional role. However, the conflict will only arise where they are called upon to act in their professional capacity over situations where board decisions are challenged and they had participated in the making of those decisions, in their governance role. The question that could arise would be one of impartiality. 120.In other words, in the absence of the obvious conflict between the professional duty and governance duty, our finding is that the dual role of chairman and advocate does not, in itself, bar legal representation of Mr. Musangi as counsel for Safaricom PLC. This Court respects the parties’ autonomy in the choice of legal representation and will not interfere where there is no proof of apparent and actual conflict. We hold the view that as long as disclosure is made and no demonstrable prejudice arises, such representation remains lawful and acceptable. In this case, there was no need for any disclosure because the undertakings by Mr. Musangi in the two roles are clear and distinct from one another. 121.It is also not in doubt that Mr. Musangi’s representation of Safaricom as legal counsel is not fettered in any way by his role as non-executive chairman of CBK who is Safaricom PLC’s regulator simply because, while he is a chairman, his role is limited only to corporate governance duties and he does not exercise the regulatory decision-making powers. In any event it is undeniable that CBK in its regulatory role does not adjudicate shareholder divestiture disputes such as the one forming the crux of the Petition herein. Mr. Musangi’s role in purely legal advisory in nature and it would be a travesty of justice for this Court to bar him from representing the 6th Respondent as legal counsel without cogent proof of conflict of interest or violations of the basic tenets of national values and principles of governance. 122.As we have already found that the said advocate Musangi who is also a non-executive chairman of the CBK Board is not a state officer and that his appointment as counsel for Safaricom PLC does not create any perceived or actual conflict, it is our conclusion that the 2nd and 3rd Applications are also lacking in merit and are hereby dismissed. 123.In the end, we find that the Applicants have not established a case for the disqualification of or barring or removal or restraining of Mr. John M. Ohaga SC, and Mr. Andrew Mukite Musangi as advocates representing the 5th and 6th Respondents in the present proceedings. Consequently, the three Applications are dismissed for want of merit. 124.We however make no orders as to costs, as the advocates who were sought to be barred from participating in these proceedings are not parties to the petition. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF JUNE, 2026F. GIKONYO M.JUDGER.E. ABURILIJUDGET.W. OUYA, OGWJUDGE