https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6875

Gachoka & another v Cabinet Secretary, National Treasury & Economic Planning & 7 others (Petition E051 of 2026 & E836 of 2025 (Consolidated)) [2026] KEHC 6875 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6875 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E051 of 2026 & E836 of 2025 (Consolidated) F Gikonyo, RE Aburili & TW Ouya, JJ May 18, 2026 Between Tony Gachoka 1st Petitioner Prof. Frederick Onyango Ogola 2nd Petitioner and The Cabinet Secretary, National Treasury & Economic Planning 1st Respondent The Cabinet Secretary, Information Communication & Digital Economy 2nd Respondent Communications Authority Of Kenya 3rd Respondent Competition Authority Of Kenya 4th Respondent The Hon. Attorney General 5th Respondent Safaricom Plc 6th Respondent Vodacom Group 7th Respondent and Irungu Nyakera Interested Party Ruling 1.This ruling is with respect to the Notice of Motion Application dated 3rd January 2026 by the Irungu Nyakera, Intended Interested Party seeking substantially to be enjoined as an interested party in the petition herein. The applicant specifically prays for orders that:a.Spentb.Leave be granted to the Applicant to be admitted in this petition as an interested partyc.That upon joinder, the Applicant be granted leave to file submissions and expert material limited to:i.Merger and acquisition thresholdsii.Competition law approvalsiii.Cross-border regulatory compliance under COMESA and EACiv.Or any other information that may be relevant in this petitionv.That costs be in this cause. 2.The Application is supported by grounds that:i.The transaction constitutes a change of control within the meaning of Section 41 (2) of the Competition Act.ii.Vodacom Group would acquire effective control exceeding 55%, triggering mandatory notification and approval.iii.The Competition Authority of Kenya, COMESA Competition Commission, and EAC Competition Authority approvals are conditions precedent, not discretionary.iv.The Capital Markets (Securities), public Offers, Listing and Disclosures) Regulations [2012] require detailed disclosure or reporting of material litigation whether criminal or civil. Considering the potential risk exposure of Safaricom Plc and the tax payers in respect to the dispute between the company and Transcend Media Group Limited and thousands of other claims in court, what is the extent of provision by the company of such liabilities and to what extent can it be determined as sufficient to cover the exposure.v.No statutory exemption exists permitting the Government to bypass competition law in disposal of public shares.vi.The Applicant's professional background uniquely equips him to assist the Court on technical M&A and competition issues not ordinarily within judicial notice.vii.Joinder will not prejudice any party but will enhance constitutional adjudication under Article 159.viii.That I as the intended Interested Party believe this application should be granted because of the identifiable stake, legal interest, duty it has concerning the dispute, and that no party will be prejudiced if the application is allowed. 3.The Application is supported by the supporting Affidavit of Irungu Nyakera of even date and a Further Affidavit by the Applicant sworn on 2nd February 2026. 4.In the Supporting Affidavit the Applicant narrates his education background thus: He holds a Bachelor of Science in Management Science and Engineering from Stanford University (USA), Master of Business Administration (MBA) from the University of Oxford, United Kingdom and a Certified Public Accountant (CPA). He states that he also has extensive professional experience in banking, capital markets, mergers, acquisitions and public finance among others. 5.The Applicant goes further to state that amongst other previous diverse work experience, he has worked with Citigroup Plc, as an Investment Banker in Wall Street New York and served as Standard Group Investment Principal in Canary Wharf, London. That he also served as Managing Director – Investments at NIC Bank and Equity Bank, overseeing large scale acquisitions, valuations and regulatory approvals and participated as in the Safaricom IPO while at Citibank London and is also familiar with Safaricom’s ownership structure, valuation methodologies, and regulatory history. 6.He states that he previously served as principal secretary, Planning and statistics and as vice chairman Public Private partnerships Committee where he earned direct knowledge of Government divestiture processes, sessional papers and statutory compliance requirements. 7.Over and above his background experience, the Applicant avers that the impugned transaction being the sale of 15% of the government shareholding in Safaricom Plc to Vodacom Group constitutes, in substance and effect a change of control and a merger-equivalent acquisition. 8.He avers that the intended transaction would shift transfer de facto and de jure control from the government of Kenya where Vodacom holding will rise to 55% while Kenya’s holding will drop to 20%, a shift that will eliminate Kenya government’s veto power and reduce its board influence to a minority position and economically and legally this is a control acquisition, not a routine share sale. 9.He avers further that the proposed sale constitutes a merger-equivalent acquisition requiring approval under Section 42-46 of the Competition Act, COMESA Competition Regulations (Articles 23-26) and EAC Competition Act Section 13 and that failure to obtain such approvals renders the transaction illegal, voidable and unconstitutional irrespective of government shareholding. 10.Further, the Applicant avers that he has no personal or pecuniary interest in the outcome of the instant motion, save for the public interest and constitutional compliance. It is his belief that that his application should be granted because of the identifiable stake, legal interest and duty it has concerning the dispute and that no party will be prejudiced if the application is allowed. 11.In his Further Affidavit sworn on 23rd February 2026, the intended party reiterates his averments in the Supporting Affidavit and includes an annexture of his detailed resume’ and a Report dubbed “Expert Report by Irungu Nyakera” 12.The Respondents did not file any grounds of opposition with respect to this Application nether did they also file any written submissions. However, oral submissions were made in open court where parties submitted on a similar application and it was agreed by the parties that the same would apply in the instant Application. 13.Counsel John Ohaga SC for the 1st, 2nd, 4th and 5th Respondents submitted that this court should be guided by the principles and threshold already laid down by the Supreme Court on the issue of joinder of parties in the case of Francis Kariokor Muruatetu (citation) and that the Applicants should not be allowed to argue matters outside the petition itself. Counsel specifically took issue with the Applicant’s Further Affidavit where his resume and an “expert report” was annexed. 14.Counsel Lempaa for the intended Interested party associated himself with Counsel Harrison Kinyanjui that Counsel for the Respondents have not stated the nature of their object or its basis. Counsel Lempaa argued further that the Francis Kariokor Muruatetu & Anor v Republic Muruatetu Petition No. 15 of 2015) had a judgement and is distinguishable from the matter at hand and should therefore not be relied upon. He also argued that this matter is at a preliminary stage and that neither the Attorney General nor the Government of Kenya stand to suffer any prejudice at all if this joinder application is allowed. 15.This application will therefore be determined based on the applicant’s pleadings, Supporting and Further affidavits and the oral submissions by Counsel for the rival parties and the relevant law. 16.Having carefully considered the material before the court we have isolated one issue for determination namely: whether the Application for joinder is merited. In determining the above, we will align ourselves to the legal threshold already set by the Supreme Court to guide the scope and nature of the application. 17.The Supreme Court of Kenya in Francis Kariokor Muruatetu & Anor v Republic (Petition number 15 of 2015), reiterated the provisions of the law for enjoinment as an interested party found in Section 23 of the Supreme Court Act, 2011 in the following terms:“(1)Any person entitled to join as a party or liable to be joined as a party in any proceedings before the Court may, on notice to all parties, at any stage of the proceedings, apply for leave to intervene as a party.“(2)An application under this Rule shall contain information on—(a)the identity of the person interested in the proceeding;(b)a description of that person’s interest in the proceeding;(c)any prejudice that the person interested in the proceeding would suffer if the intervention were denied; and(d)the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceeding and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”. 18.Similarly, the Supreme court (Supra) stated that the above provision of the Act is fortified by the Supreme Court Rules, 2012 which provide in Rule 25 thus:“(1)A person may at any time in any proceedings before the Court apply for leave to be joined as an interested party.“(2)An application under this rule shall include-(a)a description of the interested party;(b)any prejudice that the interested party would suffer if the intervention was denied; and(c)the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”. 19.The Court (Supra) enunciated and pronounced itself on the conditions precedent for a party to be considered for enjoinment as an interested party in a suit thus:“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:i.The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.ii.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.iii.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 20.Based on the above reasoning, we will proceed to address the issues that obtain in the intended Interested Party’s Application. We note that the Applicant has approached this court appropriately by way of a formal application. 21.The issue at hand is to determine whether the Applicant has clearly set out in the application, his personal interest or stake that he has in the matter. The threshold required is that: “that interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.” 22.In his grounds in support of the Application, the applicant challenges the intended sale, the subject matter of the Petition on the basis of non-disclosure of material facts and non-compliance with the approval framework of the national and regional oversight bodies namely; The Competition Authority of Kenya, COMESA Competition Commission, and EAC Competition Authority, whose approvals he holds, are mandatory and not discretional. Lastly, the Applicant posits that the intended sale offends Section 41() of the Competition Act. 23.He also states that his professional background uniquely equips him to assist this court on technical merger & acquisition and competition issues not ordinarily within judicial knowledge and that his joinder will not prejudice any party but will enhance constitutional adjudication of this matter under Article 159 of the Constitution. He concludes that the application should be granted because of the identifiable stake, legal interest and duty that he has concerning the dispute at hand. His position is buttressed in his supporting Affidavit where he states that he has no personal or pecuniary interest in the outcome save for public interest. 24.In his supporting Affidavit, the applicant has largely portrayed himself as an individual highly knowledgeable and extensively trained in matters business with a bias in banking, capital markets, mergers, acquisitions and public finance. He also demonstrates wide knowledge, skill and work experience in the same field having worked both locally and internationally and served in key positions with organizations like Citigroup Plc, Standard Group, NIC Bank and Equity Bank, overseeing large scale acquisitions, valuations and regulatory approvals and participated as an advisor in the 2007 Safaricom IPO while at Citibank London. In particular, he states that he is familiar with Safaricom’s ownership structure, valuation methodologies, and regulatory history. As such, the Applicant contends that his knowledge and experience will be of great that help to this court. 25.From the above, what clearly manifests from this Application is the Applicant’s wide knowledge and experience in the field of the subject matter. The nature of interest or stake as stated by the Applicant is that he has identifiable stake, legal interest and duty concerning the dispute at hand and he contends that his knowledge and experience will be of great that help to this court. This in our view does not disclose any nexus with the subject matter in the standard of the threshold established by the Supreme Court that “the interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral”. 26.It is noteworthy that the Applicant in his Further Affidavit went ahead to not only annex his resume’ as a way of demonstrating his knowledge and experience in the subject matter but he also included a report which he dubbed as “Expert Report by Irungu Nyakera” where he gives an analysis and opinion on the subject matter. This not only supports his position that he has wide knowledge and experience which could be of great assistance to this court but also that he leans more on the side of an expert witness as opposed to an interested party. 27.It is therefore our holding that this Application does not meet the threshold for the Applicant to be joined as an Interested Party in the instant petition. On the same note, we acknowledge that going by the evidence he has adduced through his Affidavits he has sufficiently demonstrated that he is a person of wide knowledge and experience in the field of the subject matter of this petition and may be suitable to be used as such. 28.In the upshot, the application for joinder as Interested Party in this Petition fails and is hereby dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF MAY, 2026F. GIKONYO M.JUDGE PRESIDINGR. E. ABURILIJUDGET .W. OUYA (OGW)JUDGE