https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6853

Gachoka & another v Cabinet Secretary, National Treasury & EconomicPlanning & 7 others (Petition E051 of 2026) [2026] KEHC 6853 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6853 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Constitutional and Human Rights Petition E051 of 2026 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 Mike Sonko Mbuvi Gidion Kioko Intended Interested Party Ruling 1.This ruling is with respect to the Notice of Motion Application dated 7th April 2026 by the Intended Interested Party Mike Sonko Mbuvi seeking substantially to be enjoined as an interested party in the petition herein. The applicant specifically prays for orders that:i.Spentii.The Applicant herein, Mike Sonko Mbuvi Gidion Kioko, be granted leave to be forthwith enjoined as an Interested Party in these proceedings upon which such terms as this Honourable Court may determine.iii.Upon the grant of Order No. 2 herein, leave be granted to the said Mike Sonko Mbuvi Gidion Kioko to lodge necessary pleadings that will aid and assist the just and fair determination of the Petition herein under such terms as this Honourable Court shall specify.iv.Costs abide the cause. 2.The Application is supported by grounds on the face of the Application and Supporting Affidavit of even date sworn by the Applicant, Mike Sonko Mbuvi through his Counsel, Harrison Kinyanjui. The applicant raises several grounds in support of this application which are clustered in three thematic areas namely: Statutory jurisdiction of the court to join the Intended Interested Party/Applicant in the petition, merits of the Applicant’s joinder application and; prejudice that the Applicant stands to suffer in the event of non-joinder. 3.On the statutory jurisdiction of this court, the Applicant depones that Article 7(1) of the Constitution of Kenya (Practice & Procedure Rules) Legal Notice No. 117 of 2013 confers jurisdiction on this Court and provides that with the leave of the Court, an Applicant may make an oral or written application to be joined as an interested party. That this Honourable Court has unfettered discretion even on its own motion to join any interested party to the proceedings before it, hence the discretion invoked to be exercised in favor of the Applicant herein. 4.The Applicant states further that Article 159(2)(d) of the Constitution of Kenya directs the court to secure substantive justice in matters before it, such as the instant application and maintains that the presence of the Interested Party in these proceedings is germane to aid and assist the Court arrive at a just determination of the matters pleaded before it on merit, based on the additional material and submissions proffered by the Applicant herein. 5.On the merits of Applicant's joinder application, the Applicant states that the same is defined in Rule 2 of the Constitution of Kenya (Practice & Procedure Rules) Legal Notice No. 117 of 2013, and that indeed he has an identifiable stake and legal interest (or duty) as a Kenya Citizen keen on economic governance of Kenya in the proceedings before the Court but is not a party to the proceedings and hence an Interested Party. 6.He maintains that disclosure to members of the public and the Applicant specifically that the instant proceedings had been lodged was made via the news media on March 24th 2026 when the Applicant/Intended Interested Party became aware of the pendency of these proceedings, hence the lodging of the instant application. 7.The Applicant identifies himself as a Kenyan Citizen and a subscriber of Safaricom's PLC Telcom Services including the mobile money transfer platform M-pesa, which the Intended Interested Party wishes to focus upon in his joinder herein, being directly affected by the impugned decision subject of the Petition herein. 8.It is stated that the 1st Respondent (the Cabinet Secretary, National Treasury & Economic Planning) vide Sessional Paper No. 3 of 2025 did not factor into the planned divestiture the implications on Kenyans' M-pesa service delivery. Therefore, the Applicant/Intended Interested Party seeks to canvass this objection before this Honourable Court. 9.The Applicant further states that pursuant to the public declaration on 4th December, 2025 made by the 1st Respondent of the terms of the sale of Safaricom PLC to Vodacom, it was alleged that the State would sell to the 7th Respondent 6,009,814,200 shares comprising 15% controlling power of Safaricom PLC, including the M-Pesa services platform offered by Safaricom, based on the propositions made in the cited Sessional Paper No. 3 of 2026 tabled before the National Assembly for approval. 10.On the issue of prejudice and loss that the Applicant stands to suffer in the event of non-joinder, the Applicant argues that based on the afore cited propositions set out in Sessional Paper No. 3 of 2025, it is evident that the impugned sale of the said Safaricom PLC shares will effectively reduce the State into the position of a docile minority shareholder to a paltry 20% of the Safaricom PLC shares, in an extremely critical telecommunications corporation, while thereby granting the foreign-owned 7th Respondent (Vodacom Group) the controlling majority shares at 55%. 11.He states further that as at the close of the year 2024 Safaricom PLC, had 34million Kenyan MPESA subscribers, hence the Applicant's objection to the whittling of Kenya's Digital Sovereignty and the loss of financial control over the monetary flows via M-pesa implicating Kenya's economic wellbeing is cogent. 12.He maintains that such a sale implicates the Applicant's right to participate fully in the sale by the State of the said Safaricom PLC shares, as envisaged under the Article IO(2)(a) Constitutional Principle of public participation. Specifically, such an intended sale of a critical telecommunications corporation undergirding Kenya's digital sovereignty negates the Constitutional spirit of Kenyans owning and controlling their wealth, and properties as expressed in Article 40(3) of the Constitution of Kenya. 13.The Applicant takes the position that in the same spirit as distinctly stated under Article 65(1) of the Constitution of Kenya, was a clear intention of Kenyans not to grant foreigners any right to control land and property in perpetuity vide freehold land tenure in Kenya. This, he argues is in furtherance of the securing of the Sovereignty of Kenya, now threatened by the impugned sale of the Government's majority shares in Safaricom PLC as contended in these proceedings. 14.The Applicant raises the question of the unmitigated breach of the public trust created by the State to, and in favor of Kenyans to henceforth be controlled by a foreigner (7th Respondent, VODACOM), under the impugned sale of Safaricom PLC shares to VODACOM, hence a breach of Article 65(3)(b)of the Constitution of Kenya, which provides that:-“(b)property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held by persons who are citizens” (emphasis mine) 15.He argues that the 7th Respondent herein, Vodacom is a foreign-owned corporation, being South Africa's largest telcom/mobile operator in the said country, and it is Vodafone's African subsidiary. It does not meet the threshold of Article 65(3) (b) of the Constitution of Kenya, thereby vitiating the intended sale of Safaricom's PLC Government shares. 16.It is stated further that the intended transfer of shares held by Vodafone International Holdings to the 7th Respondent, Vodacom Group has been shrouded in secrecy and that such non-disclosure of this material evidence by the 1st Respondent negatively implicates the said sale. Counsel invokes Article 10(2)(b) of the Constitution of Kenya which provides for the need for transparency in such transactions. 17.Consequently, he argues that Safaricom's PLC M-Pesa service platform stands to be sold off to the 7th Respondent in a manner that directly and negatively impacts the Applicant, his financial and personal data, and the security of the privacy of his communications as carried by Safaricom PLC Ltd, without any form of public participation and/or disclosure of the terms under which a foreigner will thence control a critical communications infrastructure of Kenya. threatening Kenya's Sovereignty. 18.The Applicant maintains that being one of the over 34 million subscribers to Safaricom transactions including M-Pesa services, he has a direct interest in the outcome of these proceedings and he wishes to have the joinder allowed on account of his placing relevant material before the Court so that a just decision can be made. He holds that were the he to file his fresh Petition on the issues so stated, it would be cumbersome, a waste of judicial resources, and replicate the issues hence, this is therefore the best forum for the applicant to be enjoined. 19.The Applicant contends that he has a right to contest any violation of the Constitution on his own behalf and on behalf of parties not before the Court, based on cogent and sound bases and who has thus sought his intervention in the matter and as such he will be left without a remedy in the circumstances. 20.It is therefore his view that proceedings constitute the best and convenient forum (forums conveniens) for the Applicant to ventilate the blatant and open Constitutional violations regarding the sale of the Governments shares in Safaricom PLC that entitles this Court to intervene. 21.On the material intended to be tabled in court, the Applicant would like to demonstrate that the National Assembly Joint Committee's Report on the subject Sessional Paper No. 3 of 2025 did not consider the critical loss of Kenya's Digital Sovereignty and the loss of financial control over the monetary flows via MPESA implicating Kenya's economic wellbeing, yet this is a Constitutionally-envisaged role. 22.The Applicant asserts that there will be no prejudice visited upon the Respondents and the Petitioners as the Court being a Court of Justice is enjoined to effect Justice and not be bound by technical considerations that impinge upon the Applicant's right to Access Justice as enshrined in Article 48 of the Constitution of Kenya. 23.It is the Applicant’s contention that the wider public interest involved in Constitutional principles application of the interface between digital service-delivery by the Government executed via Safaricom's PLC digital platform and Kenya's digital sovereignty ought to be adjudicated upon. He urges that should this Court make a finding thereon that warrants the Court of Appeal to decide, it would be preferable than leaving the issue without address. 24.Lastly the Applicant avers that it is expedient that he be accorded leave to be able to lodge documents in support of the case which he cannot do without an Order of joinder and urges the court to exercise the jurisdiction conferred upon it Court to issue the Orders sought. 25.In his Affidavit in support of the Motion dated 7th April, 2026, the Applicant largely reiterates his grounds therein. Of essence, is that he has a direct interest in the outcome of these proceedings and he wishes to have the joinder allowed on account of his placing relevant material before the Court so that a just decision can be made. It is his contention that joinder is the best forum for him to ventilate the Constitutional violations which he desires the court to address. The violations intended to be ventilated relate to Articles 10(2)b, 40(3),65(1) and 3(b) and 159(2). 26.In response to the Intended Party/Applicant’s Notice of Motion dated 7th April 2026 Application the 1st, 2nd, 3rd, 4th and 5th Respondents filed Grounds of Opposition dated 22nd April 2026 raising several grounds. The first ground raised is that the Notice of Motion dated 7th April 2026 does not satisfy the threshold for joinder of an Interested Party under Rule 2 and Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. 27.The Respondents maintain that the Applicant has not demonstrated any identifiable, proximate, or distinct legal stake in the proceedings. His status as a Kenyan citizen and a subscriber or user of M-Pesa is a generalized public interest concern shared with millions of other Kenyans and is not a special interest that stands apart from the public at large. 28.The Respondents hold that Applicant has not demonstrated any real prejudice he will suffer in the event of non-joinder. His complaint that filing separate proceedings would be cumbersome or inconvenient does not constitute the kind of legal prejudice contemplated in law. 29.Further, they contend that the issues the Applicant says he wishes to raise are substantially duplicative of matters already pleaded and canvassed by the Petitioners, including M-Pesa, digital sovereignty, public participation, national security, transparency, and the public importance of Safaricom. 30.It is their position that the application is in substance an attempt to introduce fresh and extraneous issues through the back door of joinder, including matters relating to Article 65(3)(b), foreign ownership, trust property, Safaricom PLC Ethiopia operations, Vodafone International Holdings' shareholding, and an alleged right by the Applicant to participate in the sale. 31.They argue that the prayer for leave to lodge necessary pleadings demonstrates that the Applicant does not seek participation as a true interested party, but seeks to enlarge the dispute and advance an independent cause of action. That is impermissible in law for an interested party. 32.Lastly, the Respondent’s hold that the Applicant's presence is not necessary to enable the Court effectually and completely adjudicate upon or settle the questions already arising in the consolidated petitions. That the proposed joinder would occasion delay, duplication, and prejudice to the orderly disposition of the consolidated petitions. 33.They maintain that the application is misconceived, bad in law, and an abuse of the process of the Court and should be dismissed with costs. 34.The parties did not file any written submissions but oral submissions were made in open court to be adopted for both joinder applications herein. 35.Counsel Harrison Kinyanjui for the Applicant submitted that the provisions of Rule 1 of Mutunga Rules are broad. He urged the court to render its powers including the power to on its own motion, to enjoin an Interested Party. Counsel invoked the provisions of Article 23 on the power of the court and jurisdiction under Article 165 to hear and determine applications with regard to violations of fundamental rights and freedoms. He maintained that under the Constitution, anybody can litigate on behalf of others. Court has not been told what the objection is. The Applicant is a party in person stating that he has been violated and has made a deposition that he will add value to the proceedings. 36.Counsel Lempaa Associated with Harrisson Kinyanjui’s Submissions reiterating that the Applicant will add value to the proceedings. He also placed reliance on the Supreme Court Muruatetu Case judgement on joinder applications and argued that this matter is distinguishable as the Muruatetu Case had a judgement but the instant matter is at an interlocutory stage. 37.Both Counsel urged the Court to admit the parties stating that no prejudice will be suffered by the Attorney General or the Government of Kenya. 38.Senior Counsel Ohaga, for the 1st , 2nd , 4th and 5th Respondents submitted that the Applicant/Intended Interested party seeks to agitate and develop his own cause of action and theory as to why the shares should not be sold. He relied on the Supreme Court Case Muruatetu Case where the court laid down the principles for consideration of joinder Applications. 39.He submitted further that the parties seeking to join must demonstrate what it will be saying to propel the matter further but not to argue matters outside the position itself. He urged the court to find that the Application lacks merit and to dismiss it. 40.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 laid down by the Supreme Court to guide the scope and nature of the application. 41.The Supreme Court of Kenya in Francis Kariokor Muruatetu & Anor v Republic (Petition number 15 of 2015), reiterated the provisions of the law for joinder as an interested party provided 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”. 42.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”. 43.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.” 44.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. 45.The issue of this court’s jurisdiction to handle this Application for joinder is well captured by the Applicant in his grounds in support of the Application. Indeed, Article 7(1) of the Constitution of Kenya (Practice & Procedure Rules) Legal Notice No. 117 of 2013 confers unfettered jurisdiction on this Court hear and determine Applications for joinder as interested parties. Further to the above, Article 159(2)(d) of the Constitution of Kenya directs the court to secure substantive justice in matters before it without due regard to technicalities in order to arrive at a just determination. 46.In the instant application, the Applicant maintains that the presence of the Interested Party in these proceedings is germane to aid and assist the Court on the matters pleaded before the Court on merit, based on the additional material and submissions proffered by the Applicant herein. 47.Having said thus, the next issue to determine is whether the Applicant has clearly set out in the application, his personal interest or stake that he has in the matter. The threshold required as per the Supreme Court authority (supra) is that: “that interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.” 48.The Applicant identifies himself as a Kenyan Citizen and a subscriber amongst over 34 million other Kenyan subscribers of Safaricom's PLC Telcom Services including the mobile money transfer platform M-pesa, which he wishes to focus upon in his joinder herein, being thereby directly affected by the impugned decision subject of the Petition herein. That he learned of the pendency of these proceedings through news media on 24th March 2026 and filed this Application. 49.In his grounds in support of the Application, the applicant challenges the intended sale, the subject matter of the Petition largely on the basis of lack of transparency owing to non-disclosure of material facts and lack of public participation in violation of Article 10(2)(b) of the Constitution of Kenya. 50.The Applicant is also concerned that in its Sessional Paper No. 3 of 2025, the 1st Respondent did not factor the planned divestiture and its implications on Kenyans' MPESA service delivery. He states further that going by 1st Respondent’s public declaration on 4th December, 2025 of the terms of the intended sale of Safaricom PLC to Vodacom, it was alleged that the State would sell to the 7th Respondent shares comprising 15% controlling power of Safaricom PLC, including the M-Pesa services platform offered by Safaricom, based on the propositions made in the cited Sessional Paper No. 3 of 2026 tabled before the National Assembly for approval. This he argues, amounts to patent non-disclosure of this material evidence by the 1st Respondent and negatively implicates the said sale and shrouds it in opaqueness, thereby violating Article 10(2)(b) of the Constitution of Kenya transparency of the state in such transactions. 51.While invoking the constitutional principle of public participation as envisaged under the Article IO(2)(a) Constitution, the Applicant the Applicant holds that Kenyan subscribers in the excess of 34 million including himself ought to have been given a chance to participate in a venture of this magnitude hence his objection to what he perceives as ‘the whittling of Kenya's Digital Sovereignty and the loss of financial control over the monetary flows via M-Pesa implicating Kenya's economic wellbeing. 52.He maintains that such a sale violates the Applicant's right to participate fully in the sale by the State of the said Safaricom PLC shares. He points out specifically that such an intended sale of a critical telecommunications corporation undergirding Kenya's digital sovereignty negates the Constitutional spirit of Kenyans Owning And Controlling their wealth, and properties as expressed in Article 40(3) of the Constitution of Kenya. 53.Lastly, the Applicant maintains that he stands to suffer prejudice and loss the in the event of non-joinder on the basis that going by afore cited propositions set out in Sessional Paper No. 3 of 2025, the impugned sale of the said Safaricom PLC shares will effectively reduce the State into the position of a docile minority shareholder to a paltry 20% of the Safaricom PLC shares, in an extremely critical telecommunications corporation, while thereby granting the foreign-owned 7th Respondent (Vodacom) the controlling majority shares at 55%. 54.We have carefully considered and analyzed the application before us in its entirety together with the rival parties’ pleadings and submissions. In considering the Applicant’s stake and identifiable interest in the petition, we note that his main ground is that he is one of the 34million Kenyan subscribers to Safaricom’s telcom and Mpesa services. He also argues that he has direct interest in the outcome of these proceedings based on violation of fundamental rights of Kenyans and abuse of public trust. On the contrary, we find that this does not demonstrate a clear identifiable interest in the petition before the court. We hold thus for the reason that the statement that he is one of the 34 million Kenyan subscribers to Safaricom’s services is not sufficient to find that his interest is proximate enough to stand apart from anything that is peripheral. 55.Attendant to the above holding, we also note that issues of fundamental rights violations and abuse of public trust are some of the main issues already pleaded and canvassed in the substantive motion. Whereas the Applicant’s intention is that his issues are germane and will assist this court to arrive at a fair determination of the petition, we find that allowing him to raise such issues which are already before the court will not add value but will in effect amount to duplication. 56.Secondly, the Applicant raised two main issues in support of his application for joinder namely lack of transparency and lack of public participation in the intended sale of the subject matter of the petition. However, upon our reading of the petition, we note that the two issues raised by the Applicant have been extensively canvassed by the Petitioners in the substantive motion hence the Applicant’s submissions will not add useful information to the Court pointedly different from those of the other parties. 57.Based on the foregoing, we and find that in line with the Supreme Court(Supra) and constitutional guidelines in Rule 2 and Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 that the instant Application for joinder as interested party does not meet the required threshold for want of demonstrating a clearly identifiable stake /interest and the direct prejudice that the Applicant is likely to suffer if joinder is denied. We reiterate that the issues intended to be addressed are already covered in the substantive petition and for the above reasons, the Applicant will not suffer any prejudice. 58.Based on the foregoing, we find and hold that this Application for joinder as interested party lacks in merit and proceed to dismiss it with no orders as to costs. DATED, SIGNED & DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF MAY, 2026F. GIKONYO M.JUDGE-PRESIDINGR.E. ABURILIJUDGET.W. OUYAJUDGE