https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6877

Gachoka & another v Cabinet Secretary, The National Treasury and Economic Planning & 7 others (Petition E051 of 2026 & E836 of 2025 (Consolidated)) [2026] KEHC 6877 (KLR) (Constitutional and Human Rights) (18 May 2026) (Ruling) Neutral citation: [2026] KEHC 6877 (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. Redrick Onyango Ogola 2nd Petitioner and The Cabinet Secretary, The National Treasury And Economic Planning 1st Respondent The Cabinet Secretary, Information, Communication And The Digital Economy 2nd Respondent The Communications Authority Of Kenya 3rd Respondent The Competition Authourity Of Kenya 4th Respondent The Honourable Attorney General 5th Respondent Safaricom Plc 6th Respondent Vodacom Group 7th Respondent Vodafone Kenya Limited 8th Respondent Ruling The application 1.Vide a Notice of motion dated 26th January 2026 brought pursuant to Articles 22, 23 and 258 of the Constitution, supported by affidavit sworn on the even date by the 1st petitioner, Mr. Tony Gachoka, the subsequently filed written submissions and oral highlights, the petitioners seek conservatory orders restraining the respondents, whether by themselves or any person acting under their authority from selling, transferring, offering for sale, disposing, alienating, charging, pledging, executing any agreement or completing any transaction relating to the Government of Kenya’s 15% shareholding in Safaricom PLC pending the hearing and determination of the instant application. 2.The Petitioners also seek a conservatory order restraining the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya’s shares in Safaricom PLC to the 7th respondent or any other entity pending the hearing and determination of the petition. 3.The petitioners further seek an order compelling the 1st, 2nd and 6th respondents to disclose and file in court, the full valuation reports relied upon in arriving at the price of Kshs. 34 per share; the list of all transaction advisors, valuers, legal advisors and financial advisors appointed, including their appointment letters and procurement process; any cabinet, treasury, or inter-ministerial approvals relating to the impugned transaction and any competition authority approvals or exemptions issued or applied for and any agreements, MOUs, term sheets or binding offers exchanged with the 7th respondent. 4.The petitioners further seek for an order declaring that no disposal of government of Kenya shares in Safaricom PLC shall proceed without prior Parliamentary approval in accordance with the Constitution, the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025 and 5.An order preserving the status quo as at the date of filing of the petition with respect to the ownership, control, governance and management of Safaricom PLC and costs of the application. 6.The application is predicated on the grounds that: the intended sale involves a strategic national asset touching on telecommunications, mobile money, data sovereignty and national security; the process violates the dictates of Articles 1, 10 and 227 of the Constitution and that the respondents have invoked the Public Private Partnerships Act, 2022 unlawfully to circumvent the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025. 7.According to the petitioners, the transaction risks irreversible prejudice through loss of Government control, dilution of sovereignty and exposure of sensitive national data infrastructure and that unless the conservatory orders are issued, the petition shall be rendered nugatory. 8.In the supporting affidavit, the 1st petitioner depones that the 6th respondent is a strategic national asset because it carries more than half of Kenya’s mobile telecommunications connections, dominates the mobile money ecosystem and sits at the Centre of digital payments, e-commerce, credit lending and financial inclusion infrastructure in Kenya. 9.The first petitioner deposes that the Government of Kenya currently owns 35% of the shares in the 6th respondent company, hence has significant control and strategic influence over the telecommunications and digital financial ecosystem in Kenya. He further deposes that the 1st respondent through a proposal contained in sessional Paper No. 3 of December 2025 intends to sell 15% of the Government of Kenya’s shareholding in the 6th respondent to the 7th respondent, a private and foreign controlled entity. 10.It is further deponed that pursuant to the said notice, the 7th respondent has issued notice to purchase 6,009,814,200 shares belonging to the Government of Kenya at the 6th respondent company, valued at Kshs. 204.3 billion, which intended sale will reduce Government shareholding from 35% to 20% and consequently reduce Government Board representation to only two seats. The sale price of approximately Kshs. 34 per share is an undervalue and injurious to the public interest when compared to the prevailing and intrinsic market valuations. 11.According to the deponent, the 6th respondent has consistently been one of the largest revenue generators for the Republic of Kenya, contributing between Kshs. 18 billion and 20 billion annually and that selling its shares at Kshs. 34 per share, as opposed to the estimated intrinsic value of Kshs. 70-80 per share exposes Kenya to a projected loss of approximately Kshs. 250 billion. 12.The petitioners urge that that the intended sale has been undertaken without meaningful public participation and that the transaction has not been subjected to any transparent, independent valuation process to establish a competitive price or fair market value in compliance with the Constitution and the applicable law. 13.They further contend that the 7th respondent’s Kenyan subsidiary already holds 35% of the shares in the telecommunications sector and that if the impugned sale proceeds, the 7th respondent will effectively acquire a controlling interest of 55% leaving the Government with only 20%thereby undermining Kenya’s strategic leverage over critical data infrastructure, mobile money system, competition policy and national security. 14.The petitioners believe that the impugned sale has been instigated without transparent price discovery mechanisms, without multiple bidders, without disclosure or transaction advisors, without valuation reports and without financial market or national risks analyses required for safeguarding national and data sovereignty and that it does not serve public interest and unlawfully excludes Kenyan institutional investors and retail investors. 15.The petitioners assert that unless this Court intervenes, the subject asset shall be unlawfully alienated in favour of the 7th respondent in contravention of the Constitution and the Public Private Partnerships Act. They contend that the intended sale is contrary to Section 47 of the Public Private Partnerships Act, which requires the respondents to undertake the requisite coordinated evaluation, valuation and risk assessment. 16.The petitioners posit that that the impugned sale violates Article 227 of the Constitution as read with section 4(3) of the Public Private Partnerships Act, for refusing to apply the Public Procurement and Asset Disposal Act, 2015. Further, that the respondents have violated the principles of integrity, accountability, prudent use of public resources and ethical leadership. The respondents are also accused of erroneously relying on section 4 of the Public Private Partnership Act 2022, which was never intended to govern disposal of public assets but rather privately financed projects. 17.According to the petitioners, the concurrent application of the Public Private Partnerships Act and the Public Procurement and Asset disposal Act create constitutional mischief and undermines the safeguards by Article 227. Mr. Gachoka deposes that reducing Government shareholding from 35% to 20% eliminates veto power over major corporate decisions violating Articles 201 and 238 of the Constitution. Additionally, that the transaction contains no express safeguards on data sovereignty, localization, or protection or personal and financial data of over 30 million Kenyans, and that no national security impact assessment has been conducted. 18.Further deposition is that the statements attributed to the Cabinet Secretary proposing to establish a fund with himself as sole signatory raise grave constitutional dangers, including concentration of financial power, evasion of parliamentary oversight and collapse of accountability, contrary to Articles 206, 201 and 73 of the Constitution and the Public Finance Management Act. The 1st, 2nd, 4th and 5th respondents’ responses to the application 19.The 1st, 2nd, 3rd, 4th and 5th respondents opposed the application through Preliminary Objection, Grounds of Opposition and affidavits sworn by FCPA John Mbadi Ng’ongo, the holder of the 1st respondent office. The Preliminary Objections dated 17th March, 2026 20.The preliminary objection is predicated upon the grounds that this court lacks jurisdiction to entertain the application because the impugned transaction has been presented before the National Assembly for approval through Order Paper No. 7 of 12th March 2026, thereby rendering the matter, legislative process within the exclusive constitutional mandate under Articles 94 and 95 of the Constitution. Therefore, that any intervention by this court would offend the doctrine of separation of powers. 21.That the application is premature, non-justiciable and offends the doctrine of ripeness. The preliminary objection also challenges an ongoing oversight process as envisaged under Article 95(4) (c) and 5(b) of the Constitution and contends that the application therefore offends the principles set out in the case of Wanjiru Gikonyo and others v National Assembly of Kenya and 4 others [2016] eKLR. 22.According to the respondents, the impugned transaction between the 1st respondent and the 7th respondent is a purely commercial transaction and that the application improperly seeks to constitutionalize a commercial dispute, thereby amounting to an abuse of the court process. Reliance is placed on the decision in Omar v Attorney General & 3 others [2024] KEHC 6181 (KLR). Grounds of opposition dated 12th February, 2026 23.In their grounds of opposition, the 1st, 2nd, 4th and 5th respondents contend that the application is premature, speculative and hypothetical. That there is no evidence of any concluded, approved or imminent decision by the respondent to dispose of the Government of Kenya’s shareholding in Safaricom PLC. That the petitioners have also failed to satisfy the constitutional threshold for grant of conservatory orders as articulated in Munya v Kithinji & 2 others [2014] KESC 30 (KLR). 24.According to the 1st, 2nd, 3rd, 4th and 5th respondents, no concrete or imminent constitutional violation has been demonstrated to warrant judicial intervention at the interlocutory stage. That the conservatory orders sought are final in nature, that if granted will effectively determine the substantive issued in dispute and would conclusively restrain the respondents’ lawful mandate without a full hearing of the petition. 25.The respondents contend that the orders sought are overbroad, intrusive and disproportionate and would unjustifiably fetter lawful policy formulation, intergovernmental consultations and statutory mandate vested in the respondents, contrary to public interest. The application is also said to improperly invite this Court to preempt, supervise and micromanage executive and regulatory processes that are ongoing and yet to crystallize into a ripe or justiciable constitutional dispute. 26.The 1st, 2nd, 4th and 5th respondents maintain that the petitioners have failed to demonstrate any real, imminent, or irreversible prejudice capable of being addressed through existing constitutional, statutory and regulatory safeguards. It is their position that the disclosure orders sought amount to premature fishing expedition, are unsupported and offend the principles of proportionality and procedural fairness. They maintain that the application is an abuse of the court process and urge for its dismissal with costs. Replying Affidavit 27.In the replying affidavit sworn on 8th April, 2026, Mr. Mbadi deposes that, the proposed divestiture is expected to generate approximately KES 204 billion through the sale of shares at KES 34 per share, representing a premium of approximately 23.6% over the six-month volume weighted average market price as at 2nd December 2025. It is his position that the transaction is meant to among others, mobilize non-tax revenue for investment in critical national infrastructure; stimulate economic growth, preserve and optimize national investments and reduce reliance on debt. 28.It is deposed that as at the time of searing the affidavit, the transaction was pending approval by the National Assembly pursuant to Section 74 of the Privatization Act, 2025 as read together with Section 87A of the Public Finance Management Act. According to the Cabinet Secretary, the sale or disposal of Government shares in Government Linked Corporations listed on the securities exchange is anchored in the Public Finance Management framework requiring both executive and legislative approval. 29.That through the introduction of section 87A of the Public Finance Management Act, the Privatization Act, 2025 introduces a distinct and streamlined approval mechanism for the sale of Government shares, a process that ensures that such transitions are fiscally prudent and subject to Cabinet and National Assembly oversight, thereby reinforcing transparency and accountability in the management of public investments. 30.The deponent asserts that Cabinet approval had already been granted to the National Treasury to initiate the partial divestiture of the Government’s equity stake in Safaricom PLC. It is further deponed that the rationale for the divestiture includes mobilization of substantial non-tax revenue to support infrastructure projects in energy, roads, water, airports and digital transformation while reducing public debt and expanding fiscal space for development priorities. 31.According to the Cabinet Secretary, the proposed purchaser is a long-standing strategic investor in Safaricom PLC with extensive regional experience and a proven track record in capital investment, digital infrastructure, innovation and financial inclusion. Accordingly, that the increased stake would reinforce Safaricom PLC’s competitiveness and growth trajectory. He clarifies that the Government of Kenya would retain a strategic 20% shareholding together with representation at the Board level in order to safeguard national interests, ensure continuity in governance and preserve Kenya’s digital and financial innovation leadership. 32.It is deposed that the transaction includes undertakings by the investor including protection of employees, retention of Kenyan leadership in governance roles and continued support for local initiatives and foundations associated with the Company. That following Cabinet approval, a proposal for the divestiture was submitted to the National Assembly for consideration and approval in accordance with the law. According to the deponent, the requirement for both Cabinet and Parliamentary approval enhances transparency and accountability in the management of public investments. 33.Mr. Mbadi deposes that in addition to these approvals, the transaction remains subject to the Capital Markets Act and the Capital Markets (Public Offers, Listings and Disclosures) Regulations, 2023, and would further require approvals and notifications from several regulatory bodies including the Competition Authority of Kenya, the East African Competition Authority, COMESA Competition Authority, the Central Bank of Kenya, the Communications Authority of Kenya and the Nairobi Securities Exchange. He maintains that this multi-layered approval framework ensures transparency, accountability and constitutional compliance. 34.Regarding the alleged undervaluation of shares, it is deponed that Safaricom PLC is a publicly listed company on the Nairobi Securities Exchange and that its valuation is transparent, publicly available and determined by market forces. The deponent states that the six-month volume weighted average share price as at 2nd December 2025 stood at approximately KES 27.50 per share, resulting into a market capitalization of approximately KES 1.158 trillion. 35.Further deposition is that the actual proceeds to be realised from the transaction are approximately KES 204,333,682,800 billion, based on a share price of KES 34, which represents a premium of approximately 23% over the six-month volume weighted average price. According to the deponent, the National Treasury had retained Kenya Commercial Bank Capital as its transaction advisor, which undertook an independent valuation that informed and guided the final negotiated price. The deponent further relies on International Financial Reporting Standard 13, contending that market price represents the most reliable indicator of fair value as it reflects the price at which an orderly transaction would occur between willing market participants under current market conditions. 36.The Cabinet Secretary deposes further that the Government of Kenya currently earns approximately KES 7 billion annually from the proposed 15% shareholding and that it would take approximately 30 years to realize the equivalent value of KES 204 billion through dividend accrual alone. According to him, the proceeds from the transaction would instead be deployed towards commercially viable and catalytic infrastructure projects capable of generating immediate and long-term economic returns. 37.The respondents therefore dismiss the allegations that the intended sale lacked public participation or that it was rushed, opaque, non-competitive or procedurally irregular. He reiterates that the divestiture process is anchored within the Public Finance Management framework requiring both executive and legislative approval. He further states that during the 2025/2026 budget-making process, the National Treasury expressly disclosed that privatization proceeds would form part of the Government’s revenue-raising measures. According to him, the budget-making process underwent extensive public participation conducted both by the National Treasury and the National Assembly across various counties. 38.It is further deposed that the National Assembly independently conducted public participation across more than thirty counties while considering the proposed transaction. It is his position that the process therefore fully complied with constitutional requirements on public participation, transparency and accountability. 39.With regard to the allegations that the proposed transaction would result in loss of strategic control over critical national infrastructure and expose Kenya to undue foreign influence, the concerns were misplaced and unsupported by the realities of Kenya’s economic and regulatory framework. It is deponed that the Government of Kenya has historically pursued a private sector-led economic model since the 1970s and that Safaricom PLC itself had evolved through earlier divestitures, including the sale of a 40% shareholding in 1998 and a further 25% shareholding in 2008. 40.It is contended in deposition that regulatory oversight, rather than Government shareholding, constitutes the primary mechanism for safeguarding data protection, competition, consumer rights and financial stability within the telecommunications sector. According to him, Kenya has a robust regulatory framework administered by among others the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, which adequately address the concerns raised by the petitioners. 41.It is deposed that the current divestiture forms part of broader economic reforms necessitated by fiscal constraints and increasing public debt levels, thus requiring alternative revenue-raising mechanisms. He dismissed the allegation that the transaction excludes local investors and does not serve the best interests of the Kenyan public, and states that the contention is based on a misunderstanding of the nature of listed securities and the objectives of the transaction. 42.Further deposition is that Safaricom PLC shares are publicly listed and freely tradable on the Nairobi Securities Exchange, with approximately 25% of the Company’s shares already held by retail and institutional investors. According to him, shares in a listed company are freely transferable and the concept of pre-emptive rights does not apply. He further states that the proposed transaction enables the National Treasury to secure a premium price while ensuring business continuity through an existing strategic investor with a proven record in the growth and success of Safaricom PLC. 43.It is maintained that the transaction is intended to achieve fiscal sustainability, stimulate economic growth and reduce public debt. That the National Treasury acted within its constitutional and statutory mandate under Article 225 of the Constitution and Sections 11 and 12 of the Public Finance Management Act in mobilizing resources, managing public finances and promoting economic policies that facilitate national development. According to him, strategic divestitures have been identified by the National Treasury as a tool for addressing Government debt levels, budget deficits and the need for economic stimulation through increased investment. 44.Mr. Mbadi deposes that unlike taxation, privatization does not diminish private sector wealth but instead enhances investment, increases aggregate demand and broadens the revenue base in the long term. It is further his position that the transaction enables the Government to realize optimal value through a negotiated premium price while eliminating settlement risk given the purchaser’s demonstrated financial capacity and experience in similar transactions. 45.Further deposition is that part of the transaction structure includes an upfront payment in lieu of future dividends, thereby enabling the Government to realize immediate value from its residual shareholding. The transaction, it is urged, would therefore enhance Kenya’s competitiveness as an investment destination by strengthening capital markets, increasing liquidity and reinforcing investor confidence in the economy. 46.Mr. Mbadi dismisses the petitioners’ allegations that he has violated Article 10 of the Constitution, and asserts that the claim is unsubstantiated and insists that the National Treasury, in undertaking the divestiture programme, was acting in the discharge of its constitutional and statutory mandate under Article 225 of the Constitution read with sections 11 and 12 of the Public Finance Management Act. 47.Further depositions outline the mandate of the National Treasury, including formulation and monitoring of macro-economic policies, management of public debt and financial obligations, promotion of economic and financial policies and mobilization of domestic and external resources for Government programmes. He reiterates that the impugned transaction was undertaken pursuant to a clear statutory framework under Section 87A of the Public Finance Management Act, which requires prior Cabinet approval, approval by resolution of the National Assembly and submission of a detailed explanatory memorandum outlining the scope and benefits of the proposed divestiture. 48.He further states that the statutory process obligates the National Assembly to either approve or reject the proposal within prescribed timelines, thereby ensuring oversight and accountability in the disposal of public assets. According to him, the statutory framework incorporates principles of transparency, accountability and public participation consistent with Article 10 of the Constitution and that the National Treasury had complied with all legal and procedural requirements in undertaking the transaction. 49.Additionally, it is averred that the shares subject to the divestiture are legally held by the Cabinet Secretary to the National Treasury pursuant to the provisions of the Cabinet Secretary to the Treasury (Incorporation) Act. He denies allegations that the transaction had not been publicized to the required constitutional standard, and maintains that the transaction complied with the Capital Markets (Takeovers and Mergers) Regulations requiring public disclosure of material information. 50.The deponent states that a public notice was duly issued on 4th December in two English language newspapers of national circulation disclosing all material particulars including the identity of the offeror, the offeree company, the nature of the transaction, the number of shares involved and the terms and conditions of the proposed acquisition. He maintains that the said disclosures satisfied all legal requirements relating to transparency, public notice and accountability. 51.He denies allegations that Articles 201 and 43 of the Constitution have been violated and reiterates that Safaricom PLC shares are traded in an open, transparent and regulated market where prices are determined by prevailing market forces. He restates that the negotiated price of KES 34 per share represented a premium of approximately 23% over the prevailing market price and therefore reflected fair market value and prudent financial management consistent with Article 201(d) of the Constitution. 52.Mr. Mbadi denies the allegations that the National Treasury failed to provide comprehensive information in violation of Article 35(3) of the Constitution, stating that a comprehensive proposal was prepared pursuant to Section 74 of the Privatization Act, 2025 and Section 87A of the Public Finance Management Act, including an independent valuation report prepared by a duly appointed transaction advisor. According to him, the proposal was submitted to both Cabinet and the National Assembly for consideration and approval. 53.The deponent further states that no request for additional information or particulars was made by the petitioners and that they did not participate in the public participation processes undertaken by the National Treasury and the National Assembly. He avers that the National Treasury maintains detailed records evidencing the public participation conducted across the country. He also detests allegations that the transaction violated Article 238 of the Constitution or that a national security impact assessment had not been undertaken. According to him, Safaricom PLC is a private limited liability company and that the Government of Kenya does not exercise operational control over its day-to-day affairs. That the Government’s role is limited to shareholding and board representation and does not extend to management or operational decision-making. 54.According to the deponent, national security considerations in sectors such as telecommunications and financial services are addressed through statutory and regulatory frameworks rather than through Government shareholding. That the issues relating to data protection, telecommunications, financial services and competition are regulated by competent statutory bodies including the Communications Authority of Kenya, the Central Bank of Kenya, the Competition Authority of Kenya and the Office of the Data Protection Commissioner, together with relevant regional and international regulators. He adds that from a policy perspective, it is desirable for commercial entities such as telecommunications companies to operate independently of Government control in order to promote efficiency, competition and effective regulatory oversight. He maintains that Government’s proper role is policy formulation and regulation rather than participation in commercial operations. 55.Lastly, the deponent avers that the National Treasury and the proposed investor had agreed on various undertakings aimed at safeguarding national interests and ensuring continuity of the Company’s operations. These undertakings include among other commitments, that no employee redundancies would be declared other than in the ordinary course of business; continued support for the Safaricom Foundation and M-Pesa Foundation consultation with the Government before any expansion outside Kenya excluding existing operations. He urges for the dismissal of the application, The 3rd respondent’s response 56.The 3rd respondent opposed the application through a preliminary objection and replying affidavit sworn by David Mugonyi. The Preliminary objection dated 19th March, 2026 is predicated upon grounds that the court lacks jurisdiction to entertain and determine the issues raised in the application, because the issues fall within the constitutional mandate of the National Assembly as provided under Article 95 and guided by the principles under Articles 10 and 201 of the Constitution. 57.That the application offends the doctrine of separation of powers because the petitioner is inviting this court to interfere with the statutory functions of the National Assembly contrary to the provisions of section 74 of the Privatization Act 2025 read together with section 87A of the Public Finance Management Act, Cap 412A. 58.That the petitioners have failed to adduce any credible or sufficient evidence of illegality, procedural impropriety or constitutional violation in respect of the ongoing public participation process and parliamentary approval of partial divestiture in Safaricom PLC by the government of Kenya contrary to section 107 of the Evidence Act, Cap 80Laws of Kenya. 59.That the Application is premature, frivolous and vexatious and constitutes an abuse of the court process and will undermine the sovereign will of the people of Kenya under Article 1 of the Constitution. The 3rd Respondent’s Replying affidavit 60.Mr. Mugonyi the Director General of the 3rd Respondent in his replying affidavit sworn on 20th February, 2026 confirms that the 3rd respondent (Authority) is established under section 3 of the Kenya Information and Communications Act, CAP 411A (KICA) with the mandate to among others exercise regulatory oversight over telecommunications, radio communications, broadcasting, electronic transactions; safeguard consumer interests and promoting fair competition within the sector. 61.It is deponed that in discharging its mandate, the Authority implements the provisions of Articles 46 and 47 of the Constitution in consumer protection and sections 5, 24, 25(1) and (5), 27, 83(A), 84Q and 84R of KICA. Further, that in ensuring that the public is duly informed of the conditions necessary for licensing, the Authority has published on its official website the applicable licensing procedures. 62.Mr. Mugonyi states that the Authority also published a sample of the Network Facilities Provider Tier 1 Licence on its website and that Safaricom PLC holds a Network Facilities Provider Tier 1 license, with the initial license being granted on 1st July 1999 pursuant to sections 5 and 25 of the KICA. That under its licensing conditions, Safaricom PLC is required to notify and obtain prior approval from the Authority before finalizing the sale of any shares or any changes in its shareholding. This requirement it is deponed, enables the Authority to exercise its mandate on competition management and regulatory oversight; allows it to assess whether the proposed share transfer could potentially distort competition in the telecommunications market and ensures the licensee has met all outstanding regulatory obligations. Consequently, that the approval of the changes or any proposed transaction is contingent upon clearance of any pending regulatory compliance issues, safeguarding both market integrity and adherence to statutory requirements. 63.Mr. Mugonyi states that the Authority received a formal notification from Safaricom PLC regarding the proposed changes in its shareholding on 4th December 2025. The Authority considered the application, and after reviewing the relevant licence conditions and the provisions of Cap. 411A, concluded that the proposed transaction met the requisite legal and regulatory thresholds. It then issued a letter of no objection, permitting the transaction to proceed. 64.According to Mr. Mugonyi, the application does not meet the threshold for grant of conservatory orders and that the petitioners have not substantiated their claim on violation of constitutional rights; they have not demonstrated any danger that they will suffer if the orders are not granted; or that the petition will be rendered nugatory and that the public interest tilts in their favor. 65.It is deponed that the Finance Committee of the National Assembly was at the time conducting public participation in different Counties regarding the proposed partial sale of Safaricom shares to Vodacom Group. Therefore, granting the order as sought would divest the Kenyans of the chance to comment on the issue which would undermine the provisions of Articles 10, 118 and 232 of the Constitution. That it would also amount to usurping the constitutional powers of the relevant organs of government, contrary to the principles of separation of powers. 66.Mr. Mugonyi opines that the prayers sought are substantive in nature requiring full hearing for a just determination. He urges the court to consider the substance of the petition before entertaining the application and for the dismissal of the case with costs. The 6th respondent’s response 67.The 6th respondent opposed the application through replying affidavit and further affidavit sworn by Wangechi Gichuki on 3rd February, 2026 and 19th March, 2026 respectively. She deposes that the proposed divestiture is: a policy-level fiscal and capital-markets decision within the mandate of the National Treasury; subject to multiple regulatory approvals, disclosures, Parliamentary scrutiny, public participation and several other safeguards under the Constitution, the Public Finance Management Act, Capital Markets Act, the Competition Act and NSE Listing Rule and is expressly acknowledged by the relevant regulators as preliminary and conditional, with no irreversible step having been taken until full compliance. 68.Ms. Wangechi contends that the application is premature because there is no final, operative, or legally binding decision capable of enforcement or restraint by this Court. That the various regulatory steps required to progress the proposed transaction to conclusion were all underway and had not been concluded. It is further contended that the petitioners failed to meet satisfy the threshold for the grant of conservatory orders. 69.Ms. Wangechi deposes that the proposed divestiture process is subject to, oversight by the Capital Markets Authority; compliance with Nairobi Securities Exchange Listing Rules and review under the Competition Act. Additionally, each of these institutions has publicly and formally affirmed that no transaction can proceed outside the statutory framework; Competition, minority shareholder rights, and market integrity remain fully protected and the process remains subject to regulatory review at every material stage. 70.According to Ms. Wangechi, the petition does not identify any statutory or Constitutional breach, regulatory bypass or unlawful conduct by Safaricom PLC, its shareholders or any regulator. She deposes that Safaricom PLC is a publicly listed company of national importance and that its shares are marketable securities governed by the Capital Markets Act, NSE Listing Rules, and CMA Regulations, not public assets subject to the Public Procurement and Asset Disposal Act alleged. The proposed divestiture does not also fall within the ambit of the Public Private Partnerships Act 2021. 71.The deponent for the 6th respondent denies that the petitioners have demonstrated how Article 206 of the Constitution has been violated or how the respondents have violated the provisions of the Constitution and law alleged to have been violated. She maintains that the claim is premature and speculative and that ensuring compliance with transparency, accountability, valuation, disclosure and investor protection in a listed company context is institutionally vested in the CMA and NSE. 72.According to the 6th respondent, the assertions by the petitioners of "undervaluation” of the shares intended for sale are improperly being made the subject of judicial determination. It is deposed that being that Safaricom PLC shares are publicly traded on the Nairobi Securities Exchange, it is incorrect to assert that the public have been denied access to Safaricom PLC Shares. That the petitioners have neither explained why they suggest that Kenyans should pay a premium on the open market value nor the methodology they have used to conclude that Safaricom PLC shares ought to be traded at Kenya Shillings 70 to 80 per share. 73.It is deposed that all necessary disclosures have been made to Parliament and the relevant regulatory authorities and others through public announcements of the proposed transaction. She further contends that the petition is an invitation for this court to substitute for the National treasury, CMA and Parliament which is an affront to the doctrine of separation of powers and the principles of institutional competence. Public interest, she deposes, lies in preserving orderly capital markets; respecting regulatory autonomy and allowing statutory bodies to discharge their mandates. The 1st, 2nd, 4th and 5th respondents’ further affidavit 74.In his further affidavit sworn on 8th April, 2026, Mr. Mbadi deposes that he had received formal communication from the Clerk of the National Assembly certifying that the National Assembly, by a resolution passed on 31st March 2026, approved sessional Paper No. 3 of 2025 on Partial Divestiture in Safaricom PLC by the Government of Kenya. He notes that further resolutions had been made and that the approval was pursuant to section 87A of the Public Finance Management Act, 2015. 75.Mr. Mbadi states that the Sessional Paper was handled by the Departmental Committee on Finance and National Planning and the Select Committee on Public Debt and Privatization for joint consideration and reporting to the House. The said joint committee is said to have undertaken public participation as stipulated under Article 118 of the Constitution through placing advertisements in the daily newspapers on 21st January 2026. 76.Mr. Mbadi maintains that the Sessional Paper is anchored under section 87A of the Public Finance Management Act, Cap 412A, and that under this framework, such a sale requires Cabinet approval informed by the National Treasury's assessment of the financial implications, a requirement that the Safaricom Sessional Paper satisfied. He further cites Articles 95 (2), 95(4)(c), 201(a) and (d) and 210 of the Constitution and section 12 (1) of the Public Finance Management Act on the need for the decision to dispose of a valuable public asset, such as Safaricom shares, to be subjected to Parliamentary scrutiny. 77.Mr. Mbadi maintains that the approval by the National Assembly was undertaken upon substantive consideration of the fiscal, economic and public interest implications of the proposed divestiture. Further, that the National Assembly approved the proposed partial divestiture of the Government of Kenya’s shareholding in Safaricom PLC with the understanding that it forms part of the Government's broader fiscal consolidation and divestiture objectives. 78.Mr. Mbadi deposes that the plan involves the sale of a 15% stake to Vodacom Group at an estimated KES 204 billion, receipt of an upfront advance dividend of approximately KES 40 billion, and the retention of approximately 20% Government ownership in the Company. This, he asserts, is designed to provide fiscal space while maintaining Government influence over the enterprise. The retention of a minority stake ensures continued State participation in Safaricom's governance and safeguards national strategic interests, including oversight of critical digital infrastructure and financial inclusion platforms such as M-Pesa. 79.The proposed divestiture is also said to reflect efforts to balance fiscal objectives with capital market development, private sector participation, and investor confidence. 80.Mr. Mbadi deposes that the Joint Committee engaged seventy-eight (78) stakeholder institutions drawn from government agencies, regulatory bodies, professional associations, private sector entities, civil society organizations. labour representatives, and industry players. That the Joint Committee further conducted public participation forums across thirty (30) counties, further held thirty-two (32) sittings comprising both in-house deliberations and stakeholder engagements to interrogate the Sessional Paper and review written and oral submissions. 81.Regarding the pricing and market developments, the Joint Committee is said to have noted that at the time of execution of the agreement and tabling of the Sessional Paper in December 2025, Safaricom PLC's six-month Volume Weighted Average Price stood at approximately Kshs. 27.50 per share while the negotiated transaction price of Kshs. 34.00 per share represented a premium of approximately seventeen to nineteen percent above prevailing market levels and exceeded the high-end valuation range implied by trading multiples. The Joint Committee is said to have formed the view that the negotiated price reflects a premium above historical market trading levels and aligns with subsequent market movements, thereby mitigating concerns regarding potential undervaluation. 82.On the issue of buyer identification and the competitive process, it is deposed that the Joint Committee considered public concerns regarding whether alternative strategic investors had been evaluated prior to engaging Vodacom Group as the proposed purchaser. That it was noted that negotiating with an existing strategic shareholder minimizes execution risk, preserves market confidence and avoids potential governance instability that may arise from introducing a new controlling or influential shareholder. It was further observed that alternative disposal methods could have introduced additional market volatility, currency risks, and potential downward pressure on the share price. 83.Mr. Mbadi deposes that the Joint Committee formed the view that engaging Vodacom Group provided transaction certainty and stability in corporate governance. Further, that the entire process adhered to the requisite legal and procedural framework and that no prejudice would be suffered by the petitioners as a result of the proposed divestiture. The Petitioners’ further affidavit 84.The 1st petitioner filed a further affidavit sworn on 14th April, 2026 reiterating that the purported approval by the National Assembly does not meet the constitutional threshold for meaningful oversight. According to him, the alleged approval of the Sessional Paper failed to satisfy constitutional requirements because there was lack of full disclosure; inadequate public participation, predetermined outcome and failure to interrogate valuations and structure. 85.He contends that reliance on Section 87A of the Public Finance Management Act does not oust constitutional safeguards and that statutory processes cannot cure constitutional deficiencies. That the assertion that Parliamentary approval validates the transaction is misplaced and the courts retain the authority to review whether such approval meets constitutional standards. 86.It is deposed that on the 23rd March 2026, the High Court issued orders of status quo; therefore, it amounts to sub judice for the National Assembly of Kenya to have continued with the deliberations on the divestiture of Safaricom PLC shares, contrary to Standing Order 89 of the National Assembly Standing Orders of Kenya. 87.It is further deposed that in January 2026, the Law Society of Kenya, pursuant to Section 4(1) of the Law Society of Kenya Act, presented a memorandum to the National, Assembly of Kenya in which the Society stated that, while it agrees with the respondent on the need for debt-free infrastructure funding, the goose that lays the golden egg cannot be sacrificed to achieve this. 88.According to the first petitioner, the alleged involvement of Committees and stakeholder engagements does not in itself satisfy oversight requirements, particularly where there is no evidence of independent expert analysis; the process lacking transparency and the fact that key concerns raised by the public were not substantially addressed. He maintains that the National Assembly abdicated its constitutional mandate and contends that the disposal of a strategic national asset such as Safaricom Plc demands heightened constitutional scrutiny. He further maintains that the purported parliamentary approval is constitutionally insufficient; the oversight exercised was illusory and ineffective and the divestiture process is unlawful and unconstitutional. The 6th respondent’s further replying affidavit 89.Ms. Wangechi swore a further affidavit on 19th March, 2026 contending that the petitioners themselves acknowledge that the proposed divestiture is anchored in sessional paper No. 3 of 2025, which has been presented to Parliament, which his is part of the statutorily recognized process of legally implementing the partial divestiture of the shares and is consistent with Articles 10, 94 and 201 of the Constitution. 90.Ms. Wangechi maintains that the petitioners have in their affidavit failed to demonstrate any specific statutory provisions that have been violated; any procedural step that has been unlawfully omitted and any constitutional requirement that has been breached. Further, that the assertion that the Kenya public stand to suffer a loss of Kshs. 250 billion is unsubstantiated. She contends that the proposed transaction, since it involves listed securities is still subject to regulatory approvals, disclosure requirements and capital markets scrutiny hence, no real or imminent danger of unlawful or irreparable harm as alleged. 91.According to the deponent, the conservatory orders halting such a process would undermine investor confidence, disrupt capital markets and prejudice shareholders of Safaricom PLC, among others. That it is in public interest that the process proceeds to its logical conclusion, as it has not been demonstrated that the substratum of the petition is at risk of dissipation. She deposes that in any event; this court has remedial powers under Articles 23 and 165 of the Constitution. The 1st petitioner’s written submissions 92.In his written submissions dated 29th January, 2026, the 1st petitioner relies on the decisions in Okiya Omtatah Okoiti v Judicial Service Commission; Philomena Mbete Mwilu & another (Interested Parties) [2021] eKLR; Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR; Wilson Kaberia Nkunja v the Magistrate and Judges Vetting Board and Others [2016] eKLR; Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR among others, on the nature of conservatory orders and the applicable principles for granting of the said orders. 93.Citing the decisions in Mrao v First American Bank of Kenya Limited & 2 others (2003) KLR 125; Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another [2015] eKLR; Mirugi Kariuki v Attorney General (1992) KLR 8 and Re Bivac International SA (Bureau Veritas) (2005) 2 EA 43, it is submitted that a prima facie case has been established to the extent that the petitioners have demonstrated the violations of Articles 10, 201(d), 227, 43, 35(3), 31, 238 of the Constitution by the respondents. 94.The 1st petitioner urges this court to examine the matter as a whole, weigh the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law and be guided by Articles 22(1) and 258(1) of the Constitution in reaching its determination. He submits that he has satisfied the threshold for grant of conservatory orders enunciated in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra). He contends that the petition raises arguable constitutional questions regarding transparency, accountability, public participation and the lawful disposal of assets under Articles 10 73, 201 and 227 of the Constitution. Further, that the intended alienation of the Government of Kenya’s 15% shareholding in Safaricom PLC without parliamentary oversight and full disclosure offends the PPADA, the Privatization Act and established principles of constitutional governance. 95.The 1st petitioner asserts that unless restrained, the impugned transaction risks irreversible dissipation, rendering the petition nugatory and finally, that public interest favors the preservation of the status quo. Reliance is placed on Muslims for Human Rights (MUHURI) v Inspector General of police [2014] eKLR. He urges that the application be allowed. The 2nd petitioner’s submissions 96.The 2nd petitioner submitted, citing the decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji & Others (supra); Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR and Muslims for Human Rights (MUHURI) v Attorney General [2011] eKLR on the nature of conservatory orders. He urges the court to confine itself to a prima facie assessment without delving into the merits of the substantive petition. 97.Regarding the principles for granting conservatory orders, the 2nd petitioner places reliance on the decisions in Gatirau Peter Munya (supra); Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board (supra) and Board of Management of Uhuru Secondary School v City County Director of Education [2015] eKLR. 98.On whether a prima facie case has been established, the 2nd petitioner submits that the petition discloses substantial constitutional violations arising from the impugned transaction. That the respondents acted in violation of Articles 10, 201(d), 227, 35, 31, 238 of the Constitution. Reliance is placed on the decision in Mrao Ltd v First American Bank of Kenya Ltd (supra). 99.The 2nd petitioner urges that the 1st petitioner has satisfied the court that the threshold for grant of conservatory orders has been met; the petition raises weighty constitutional questions touching on governance, public finance and accountability; there will be irreversible alienation unless restrained and public interest favours preservation of the status quo ending judicial determination. 1st, 2nd ,4th and 5th respondents’ submissions 100.The 1st, 2nd, 4th and 5th respondents filed written submissions dated 18th March, 2026 and rely on the decisions in Samuel Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] KESC 8 (KLR); Lemita Ole Lemein v Attorney General & 2 others [2020]KECA 303 (KLR); Gencel v Goga [2023] KEHC 18429 (KLR) and submit that this court lacks jurisdiction to entertain the present petition and application as the issues raised arise from an ongoing institutional and parliamentary process that is yet to crystallize into a justiciable dispute. 101.The 1st, 2nd, 4th and 5th respondents argue that the impugned transaction is under consideration and approval framework of the National Assembly, thereby falling within Parliament’s constitutional mandate under Articles 94 and 95 of the Constitution. They rely on the decision in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR for the proposition that intervening at this stage would offend the doctrine of separation of powers and encroach on Parliament’s oversight mandate. 102.The 1st, 2nd, 4th and 5th respondents maintain that the dispute before this court has not crystallized into a justiciable controversy capable of determination. That the petition challenges a transaction that is yet to be approved, finalized and implemented whose outcome remains uncertain. Reliance is placed on the cases of Wanjiru Gikonyo and Others v National Assembly of Kenya and 4 others [2016] eKLR and Republic v National Employment Authority & 30 others Ex parte Middle East Consultancy Services Limited [2018] eKLR for this proposition. 103.In the same breadth they submit that the petition offends the doctrine of ripeness and the doctrine of separation of powers. That what was then before Parliament was an ongoing process whose final outcome was unknown and that it was being undertaken in line with Parliament’s oversight mandate stipulated under Article 95(4) and (5) of the Constitution. They rely on the decision in Attorney General & 2 others v Ndii & 70 others; Dixon & 7 others (Amicus Curiae) [2022] KESC 8 (KLR) to support their argument. 104.The 1st, 2nd, 4th and 5th respondents rely on the case of Consumer Federation of Kenya v Toyota Motors Corporation & 4 others [2022] KEHC 15459 (KLR) for the submission that the petition offends the doctrine of constitutional avoidance because the petitioners have prematurely invoked the court’s jurisdiction before the conclusion of the Parliamentary process, thereby inviting the court to determine constitutional questions in the abstract. They further submit that the petitioners have failed to exhaust available constitutional mechanisms stipulated under Article 119 of the Constitution. 105.Finally, the 1st, 2nd, 4th and 5th respondents contend that the petition improperly seeks to constitutionalize a commercial transaction. That the impugned process concerns the partial divestiture of the shares held by the Government of Kenya in Safaricom PLC therefore, the Government is not acting in its sovereign regulatory capacity, but as a shareholder engaging in a commercial transaction within the framework of the capital markets. Further, that the sale of shares through the Nairobi Securities exchange is governed by market dynamics, and the valuation of such shares is therefore not a constitutional question but rather a commercial one determined within the regulatory regime of capital markets. They rely on the case of Omar v Attorney General & 3 others (supra) and urge that the petition and application be stuck out with costs. Supplementary submissions 106.In their supplementary submissions dated 17th April, 2026, the 1st, 2nd, 4th and 5th respondents rely on Article 23(3) (c) of the Constitution and the decisions in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra); Center for Rights Education and Awareness (CREAW) & another v Speaker of the National Assembly & 2 others [2017] eKLR and Free Kenya Initiative & 6 others v IEBC & 4 others [2022] eKLR on the applicable threshold for grant of conservatory orders. 107.The 1st, 2nd, 4th and 5th respondents submit that the petitioners have not shown a prima facie case warranting the conservatory orders. They contend that the legal route they said was being bypassed has, on the present material, been followed and that the petitioners have not adduced evidence of regulatory bypass or that the respondents have attempted to proceed outside the statutory framework or that the regulator as abdicated its mandate. Reliance is placed on section 87A of the Public Finance Management Act and section 74 of the Privatization Act, 2025. 108.The 1st, 2nd, 4th and 5th respondents reiterate the depositions by the 1st respondent and maintain their position regarding public participation and undervaluation adding that, the issue as to whether the public participation met the requisite threshold is matter for full hearing. They submit that the petitioners have not adduced any expert valuation report, any admissible methodology, or any properly exhibited market analysis sufficient to demonstrate the contrary. 109.Regarding the complaint on purchaser identification, they reiterate that the Joint Committee considered public concerns about whether the alternative strategic investors had been evaluated and formed the view that engaging an existing strategic shareholder minimized execution risk, preserved market confidence and avoided governance instability. They submit that the court may also eventually interrogate those conclusions at the final hearing. 110.The 1st, 2nd, 4th and 5th respondents submit that the petitioner’s national-security and data-sovereignty arguments are unsubstantiated. They contend that the updated material shows continued Government participation through a retained 20% stake, board representation, continuing sectoral regulation, and specialist oversight. It is therefore their position that the petitioners have not shown, on the material on record, an apparent and presently threatened constitutional violation of the sort that justifies conservatory intervention now. Reliance is placed on the case of Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] eKLR. 111.Responding to the further affidavit by Tony Gachoka sworn on 15th April, 2026, the 1st, 2nd 4th and 5th respondents submit that the 1st petitioner has reiterated the complaints in his petition and that the issues raised such as predetermined outcome and valuation and structure are still unsubstantiated. They add that the complaint founded on absence of parliamentary approval has now been overtaken by events and the allegation of lack of full disclosure does not presently establish prima facie illegality in light of the dictates of section 87A (4) of the Public Finance Management Act. 112.They further submit that some of the issues raised in the said affidavit are matters for determination at a full hearing such as the issue of public participation, the characterization of Safaricom as a strategic national asset and the issue as to whether section 87A of the Public Finance Management Act offending constitutional provisions. 113.The 1st, 2nd, 4th and 5th respondents submit that the petitioners have not demonstrated that a real and imminent constitutional injury will occur before the petition can be heard and determined. This is because, they argue, that approval of the National assembly did not itself amount to completion of the transaction. That the approval expressly provided that its effective date would be 1st April 2026 or such later date when all regulatory approvals that form conditions precedent had been obtained. That the parliamentary approval further provided that completion would occur only upon obtaining those regulatory approvals and through the Block Trade Platform of the Nairobi Securities Exchange. They therefore submit that approval was not execution; it was one stage in a still-conditioned statutory process. 114.Secondly, the respondents 1,2,4, and 5 argue that the post-parliamentary process remains subject to the Capital Markets Authority, the Competition Authority, the Communications Authority, the Nairobi Securities Exchange and any other applicable regulatory gatekeeping. They maintain that the statutory framework already preserves the subject matter. 115.Thirdly, it is urged that the shares in question are fungible listed securities and that therefore, any eventual challenge based on valuation, disclosure, process, or approval is not of the same character as a case involving destruction of unique physical subject matter. That should this Court ultimately find illegality, it retains ample remedial power under Article 23(3) to fashion effective relief. 116.Fourthly, that the parliamentary resolution itself introduced worker and ecosystem protections that substantially dissipate the issue on irreversible harm, with the House providing for no acquisition-related redundancies and for preservation, for ten years, of the current shared prosperity model affecting dealers, agents and business partners. 117.Finally, it is argued that the retained Government stake of approximately 20%, together with continued Board representation, further weakens the assertion that an immediate and irreversible constitutional rupture is about to occur the moment interim restraint is lifted. 118.The 1,2,4 nd 5th Respondents argue that public interest and proportionality tell strongly against conservatory relief. It is their case that Parliament has now exercised the approval function assigned to it by section 87A of the Public Finance Management Act and that the specialist regulators remain seized of their own functions hence, to impose a conservatory order at this stage would add a court order to a process already bounded by statute, parliamentary oversight and regulatory supervision. 119.The 1st, 2nd, 4th and 5th respondents submit that public interest also includes public finance. That the Cabinet Secretary’s further affidavit states that the transaction forms part of broader fiscal-consolidation and divestiture objectives; that part of the proceeds will support the budget by closing financing gaps; that a significant portion will be directed to the Infrastructure Fund; and that a further portion will support long-term savings and intergenerational equity through the Sovereign Wealth Fund. That whether the Petitioners ultimately persuade the Court that this policy choice is constitutionally insufficient is a merits question. 120.It is their further submission that unwarranted judicial intervention would also create market uncertainty, impair institutional independence and blur the constitutional allocation of responsibility among the Court, Parliament, the Executive, and the specialist regulators. They urge this Court to be slow to intervene. Reliance is placed on the cases of Mumo Matemu v Trusted Society of Human Rights alliance & 5 others [2013] eKLR; Balco Employees Union (Reqd.) v Union of India (2002) 2SCC 333 and National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18. The 3rd respondent’s submissions 121.The 3rd respondent filed written submissions dated 19th arch, 2026. On jurisdiction, the Authority submits that at the time when the petition and application were filed, the National Assembly was actively discharging its statutory mandate in relation to the proposed sale of the Government’s shares in Safaricom PLC as envisaged under Articles 10, 95(1) and 201 of the Constitution and the provisions of sections 89A (87A) of the Public Finance Management Act, Cap 412A as read together with the section 74 of the Privatization Act No. 18 of 2025. It therefore urges this Court to exercise judicial restraint. Reliance is placed on the case of Justus Kariuki Mate & another v Martin Nyaga Wambora & another [2017] eKLR. 122.On conservatory orders, the 3rd respondent Authority relies on the cases of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another (supra) on the threshold for granting conservatory orders. 123.On whether there is established prima facie case, it is submitted that that the allegations by the petitioners, of the impugned transaction are unfounded and a misapprehension of the applicable law governing the divestiture process. 124.The 3rd respondent submits that contrary to the petitioners’ assertions, the National Assembly undertook public participation across 30 counties in Kenya between January and February 2026 and a joint stakeholder engagement session in Nairobi on 13th January 2026. Further, that the applicable legal framework is section 87A of the Public Finance Management Act as amended by the Privatization Act, 2025 and not the Public Private Partnerships Act or the Public Procurement and Asset Disposal Act. 125.It is further submitted that the petitioners have annexed the proceedings of the National Assembly for 12th March 2026 that demonstrate that Parliament is actively seized of the matter and has put in place safeguards to ensure that the proposed divestiture does not prejudice the people of Kenya, which proceedings, according to the 3rd respondent, reflect the assurances that there will be no redundancy of existing staff and that the current business model involving Safaricom PLC declares, agents and other business partners will be preserved. 126.The 3rd respondent submits that the supervisory jurisdiction of this court can only be exercised where there is demonstrable violation of the Constitution and the law. Further Reliance is placed on the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR; Karime v Director of Public Prosecution & 2 others [2024] KEHC 13846 (KLR) and Chabeda v ODPP & 4 others [2025] KEHC 6181 (KLR) for the contention that the petitioners have not met the evidentiary threshold required for the grant of conservatory orders. 127.Further submission by the 3rd respondent is that the application is premised on mere apprehension of a possible violation of rights, hence no prima facie case has been established, nor have the petitioners demonstrated that they will suffer any prejudice arising from an actual or imminent violation of their rights by the respondent. That the petitioners have not demonstrated that the substratum of the petition will be rendered nugatory. That there is further no evidence that the petitioners presented their concerns before Parliament’s Joint committee during public participation or before the National Assembly during the consideration and approval process of Secessional paper No.3 of 2025. 128.The 3rd respondent argues that this court is concerned with the constitutionality of the process and compliance with constitutional requirements and not issues relating to the valuation of shares, risk assessment for the proposed sale and other complex commercial aspects of the transaction which fall within the domain of the Commercial Court. It further argues that petitioners have not demonstrated irreparable harm that will be suffered that cannot be remedied through appropriate legal or equitable relief, should the court determine in its favor. 129.It is further submitted that the existence of a clear legal regime governing the sale of shares in government-linked corporations under the Public Finance Management Act, as amended by the Privatization Act 2025, is, in itself, a safeguard designed to ensure the integrity, transparency and accountability of the process. The statutory framework provides checks and balances at every stage, including parliamentary oversight and approval. Further, that the Sessional Paper No. 3 of 2025 set out, in detail, the rationale underpinning the Government's decision to partially divest its shareholding, including the anticipated benefits of the transaction. Equally, that the public has been afforded a meaningful opportunity to interrogate and contribute to the process through the public participation fora conducted across the country. 130.It is further submitted that the petitioners have not adduced any evidence of irregularity, illegality or procedural impropriety in the process; and that the process of divestiture in the government shares in Safaricom PLC is grounded in law and reflective of the will of the people and that any intervention by this Court to halt the process would be contrary to established public policy principles and would undermine a lawful exercise of parliamentary mandate. 131.The 3rd respondent further submits that the grant of conservatory orders in the circumstances would risk undermining investor confidence and compromise the confidentiality attendant to such transactions, which is essential to maintaining economic stability and fostering sustainable development. Therefore, that the application fails to meet the threshold for grant of conservatory orders and should be dismissed with costs. The 6th respondent’s submissions 132.The 6th respondent filed written submissions dated 20th February, 2026 and submits that the petitioners have not met the threshold for issuance of conservatory orders and that the issuance of conservatory orders in this instance will be against public interest. Reliance is placed on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others (supra). The 6th respondent argues that significant public resources have already been expended to facilitate due process in this matter and that it is in the interest of good governance and proper utilization of resources that the process be allowed to reach its logical conclusion. 133.The 6th respondent submits that the particulars of violation by the petitioners are not grounded either in fact or law but are based on speculation and misapprehension of the law. It further contends that the petitioners have not established prima facie case because they have cited a number of constitutional and statutory provisions allegedly violated, without substantiating their claim. Reliance is placed on the case of Mrao v First American Bank of Kenya Limited & 2 others (supra). 134.The 6th respondent submits that while the petitioners suggest that the Public Private Partnership Act has been improperly invoked to circumvent procurement law, no executed PPP agreement has been exhibited; No procurement process has been shown to have been unlawfully avoided. It further submits that the petitioners have prematurely approached this Court with claims of noncompliance with the law, while the process of compliance with the law is ongoing. Reliance is placed on the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR) for the contention that the burden of proof is on the petitioner to not only allege but also demonstrate to this Court that there has been an express failure to comply with the provisions of the law with respect to this transaction. 135.The 6th respondent submits that the petitioner, having alleged that the price per share is grossly undervalued is required by the law to provide proof. That no valuation report has been produced, no expert evidence has been filed and no comparative financial analysis has been provided. It is also submitted that listed company's share price is determined within a regulated market environment subject to disclosure obligations and price discovery mechanisms. That in this case, the Court is not presented with any evidence capable of establishing that a Constitutional wrong has occurred. 136.The 6th respondent submits that petitioner has raised a multitude of allegations but has failed to demonstrate an imminent threat to his rights, or an imminent threat of the commission of an illegality by any of the respondents. It contends that the proposed divestiture process is expressly subject to oversight by various statutory bodies. That the Capital Markets Authority oversees the approval of disclosures, pricing methodology, investor protection safeguards and market-conduct compliance. Parliament is exercising oversight over the process by way of sectoral committee oversight over the transaction and the process is being conducted in strict compliance with Nairobi Securities Exchange Listing Rules on continuous disclosure obligations and trading safeguards. Lastly, that the proposed divestiture is subject to review under the Competition Act, including merger control and competition-impact assessment where applicable. 137.The 6th respondent cites the case of Kibos Distillers Limited & 4 others v Benson Ambit Adega & 3 others [2020] eKLR and reiterates that the petitioners are calling upon this Court to substitute itself for the National Treasury in fiscal policy, the Capital Markets Authority in capital markets regulation and Parliament in oversight which offends the doctrine of separation of powers and the principles of institutional competence. It submits that public interest lies in upholding good governance by preserving orderly capital markets, respecting regulatory autonomy and allowing statutory bodies to discharge their mandates. 138.The 6th respondent submits that the petitioners have failed to demonstrate to this Court that they will suffer prejudice or that the Petition will be rendered nugatory unless the conservatory orders are issued. Reliance is placed on the cases of Free Kenya Initiative & 6 Others vs Independent Electoral Boundaries Commission 4 Others; Kenya National Commission on Human Rights (Interested Party) [2022] eKLR and Center for Rights Education and Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 others (supra). 139.The 6th respondent maintains that Shares are fungible assets and that any alleged financial irregularity would be capable of reversal or compensated for. It further maintains that no imminent dissipation of public funds has been demonstrated and that there are no pleaded facts, expert evidence, or viable security assessment demonstrating that the proposed transaction sale compromises national security. 140.According to the 6th respondent, the petitioners have not demonstrated how the petition will be rendered nugatory or any threat to their constitutional violations. It urges for the dismissal of the application with costs. 141.The respective parties’ counsel also made oral highlights of the written submissions which highlights mirror the written submissions and therefore there is no need of reproducing the same here. Analysis and determination 142.We have considered the application dated 26th January, 2026 seeking conservatory orders pending the hearing and determination of the Petition, the affidavits in support, opposition thereto by each of the respondents and the parties’ rival submissions. We find the main issues for determination to be:a.Whether this Court has jurisdiction to entertain the petition and the application for conservatory orders.b.Whether the conservatory orders sought are availablec.What orders should this Court make 143.On whether this court is vested with jurisdiction to hear and determine the petition and therefore the application for conservatory orders, the Respondents contend that this Court has no jurisdiction to entertain the petition and therefore the application for conservatory orders because the matters complained of were still undergoing parliamentary and institutional processes; that such parliamentary approval is not final for execution of the sale as no final decision had been made, and that therefore the dispute had not crystallized into a justiciable controversy. They further contend that this Court ought to exercise restraint, defer to Parliament and avoid engaging constitutional questions prematurely. 144.These arguments are not without merit and Courts must, and indeed, always remain conscious of the constitutional roles assigned to other arms of government. Issues of economic policy, parliamentary deliberations and public finance certainly call for judicial restraint. However, judicial restraint should not be an excuse for constitutional inaction where serious questions are raised regarding compliance with the Constitutional dictates. 145.The High Court derives its jurisdiction directly from Article 165 of the Constitution. The Article vests in this Court authority to hear and determine whether anything done under the authority of the Constitution or statute is inconsistent with or in contravention of the Constitution. That jurisdiction extends not only to alleged completed violations, but also to alleged threatened violations and ongoing processes alleged to be unfolding but which are alleged to be constitutionally deficient. 146.We observe that this Court has not been asked to determine whether the proposed sale of 15% shareholding of the Government of Kenya in the 6th respondent Safaricom PLC is economically viable or whether it is commercially desirable. Neither have the petitioners invited this Court to usurp the functions of Parliament or the Executive. Their complaint is narrower, but no less significant. They contend that in the course of pursuing the impugned transaction, constitutional safeguards have not been meaningfully adhered to. 147.The petitioners allege that the process of the intended sale is devoid of the following constitutional values and principles of governance: public participation public participation; transparency; and accountability. They also contend that the process of the intended sale was being rushed and that the petition is brought in the protection of protection of public assets. They claim that beyond a newspaper advertisement which is annexed, there is no evidence of meaningful public participation, that there is no evidence of valuation and risk assessment reports, which include how the personal and financial data of millions of Kenyans will be handled and therefore the alleged failure to account for the public and national interest implications of the process. They challenge the value for money of the intended sale which is a constitutional principle espoused in Article 227 of the Constitution, among other grievances. 148.Those allegations, in our view, are not abstract. They are constitutional questions. 149.The fact of the National Assembly having discussed or considered the relevant Sessional paper No. 3 of 2025 as approved by the Cabinet does not by itself, in our humble view, place the process beyond constitutional scrutiny. Parliament, indeed, has a very important role to play in the approval process, but as conceded by the respondents, it is not the final body in the approval process. More so, Parliament operates within the Constitutional framework and therefore, Parliamentary involvement cannot, on its own, cure alleged constitutional deficiencies if such deficiencies are ultimately established. 150.In the same vein, the doctrine of constitutional avoidance does not require courts to turn away whenever a matter carries political or economic implications. The principle simply cautions judicial restraint where a dispute may properly be resolved by any other established lawful and effective mechanisms. Authorities on this doctrine are many. 151.In this case, where the petitioners; complaint is that constitutional standards of transparency, accountability and public participation have allegedly not been met, this Court cannot avoid the Constitution without abdicating its own constitutional mandate. 152.Additionally, the the dispute cannot be necessarily premature merely because the impugned sale process is still ongoing. In many instances, waiting until an impugned process is fully completed may defeat the very purpose of constitutional protection. 153.In this case, all that the petitioners are saying is that if the transaction proceeds to completion before the issues raised are examined, the resulting consequences may be difficult to reverse, particularly where strategic public assets and third-party interests are involved. It is for these reasons that this Court must strike a delicate balance between the two positions by recognizing the respective roles of the Legislature and the Executive and also fulfilling its constitutional obligation of upholding the rule of law. 154.We observe that the respective parties’ Counsel argued the application for conservatory orders as if to expect a merit determination of the petition. We therefore clarify that we are not, by this ruling, making a determination on whether the impugned sale process is constitutional or otherwise. This is simply because at this juncture, the issue before this Court is whether there is a constitutional controversy worthy of judicial intervention. 155.On the whole, we are satisfied that this Court is possessed of jurisdiction to entertain both the Petition and the application for conservatory orders. 156.The respondents further contend that this Court’s intervention will undermine investor confidence and negatively affect the market. We appreciate the importance of economic stability and investor certainty to this nation. However, constitutional compliance cannot be subordinated to commercial convenience. A quick reminder is that investor confidence in a constitutional democracy like ours is not founded upon the unchecked exercise of public power, but upon the assurance that the government acts within the confines of the Constitution and the law. 157.Where the issue as is the case herein, is whether the proposed sale satisfies constitutional principles of openness, accountability and process, one cannot say that the Courts which have been moved to resolve the identified issue are undermining investor confidence. 158.In our view, compliance with constitutional processes enhances institutional legitimacy and encourages confidence within public governance structures. Therefore, where allegations of the lack of proper public participation, undervaluation of public assets, failure to undertake proper risk assessment, or other procedural failings regarding the proposed sale of public interests in the 6th respondent Safaricom PLC, or alleged lack of express provisions on data sovereignty thereby violating Article 31 of the Constitution, this Court cannot be expected to shun its constitutional responsibilities simply because the transaction has a commercial aspect and that the investors who are not willing to wait until resolution of the dispute will shy away. 159.This Court is alive to the maxim that the protection guaranteed under the Constitution cannot be an inconvenience but is an integral part of the legal framework that ensures justice, certainty and legitimacy in public transactions. 160.Besides, conservatory orders are temporary in nature. They do not constitute a final decision regarding the validity of the intended sale. The reason behind the issuance of such an order is to ensure the subject matter in dispute is preserved, until the final decision is made, and so that the petition, if found to be meritorious, is not rendered nugatory. 161.Consequently, we do not buy in the argument that constitutional adjudication automatically results in loss of confidence by investors. Such an argument if accepted by this Court would lead to immunity from judicial review for public dealings on the grounds that those dealings are economically motivated. That argument would run afoul the supremacy of the Constitution. In our opinion, the greater threat to investor confidence, would be from situations where, important public transactions are allowed to take effect in a climate of unresolved concerns of lack of transparency, due process and constitutional compliance and where no judicial remedy is available. 162.For the above reasons, this Court is not persuaded by the contention that to grant conservatory orders in this case will be viewed as an unjustifiable assault on investor confidence. 163.The petitioners also prayed that:a.The full valuation reports relied upon in arriving at the price of Kshs 34 per share;b.The list of all transaction advisors, valuers, legal advisors and financial advisors appointed, including their appointment letters and procurement process;c.Any Cabinet, Treasury or inter-ministerial approvals relating to the impugned transaction;d.Any Competition Authority approvals or exemptions issued or applied for;e.Any Agreements, MOUs, term sheets or binding offers exchanged with the 7th Respondent 164.In answering the question of whether to grant the above prayers at this conservatory stage, we note that not much was said by the parties in this application regarding DISCLOSURE as pleaded by the petitioners, save that the 1st, 2nd, 4th and 5th respondents contended that the petitioners were on a fishing expedition. In our view, this issue is best determined in the main petition and therefore we shall not discuss its merit at this interlocutory stage. 165.Onto the issue of whether the other conservatory orders halting the process of sale of the Government of Kenya’ 15% shares in the 6th Respondent Safaricom Ltd are available to the petitioners, the general caution in such applications and the principles for consideration and the discourse on the applicability of the principles for conservatory orders to the application herein are now settled as discussed below and well-articulated by counsel appearing for the respective parties to this petition in their submissions. 166.In Invesco Assurance Co. Ltd vs. MW (Minor suing thro' next friend and mother (HW) [2016] eKLR, Nairobi Civil Appeal 151 of 2011, a conservatory order was defined as follows:5.A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter. 167.On the nature of conservatory orders, the Court in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR had the following to say:Conservatory orders in my view are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person. 168.Subsequent to the above cited decision, the Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR discussed the nature of conservatory orders as follows:(86)“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the Applicant’s case for orders of stay. 169.Given the nature of conservatory orders, it is argued, that there is need for a Court to exercise care in such applications. That proposition is informed by the reason that matters which are the preserve of the main Petition ought not to be dealt with, with finality at the interlocutory stage. 170.The foregoing position was aptly captured by Ibrahim, J (as he then was) in Muslim for Human Rights (Milimani) & 2 Others vs Attorney General & 2 Others (2011) eKLR. The Learned Judge, correctly stated as follows:The court must be careful for it not to reach final conclusion and to make final findings. By the time the application is decided; all the parties must still have the ability and flexibility to prosecute their cases or present their defences without prejudice. There must be no conclusivity or finality arising that will or may operate adversely vis-a vis the case of either parties. The principle is similar to that in temporary or interlocutory injunctive in civil matters. This is a cardinal principle and happily makes my functions and work here much easier despite walking a tight legal rope that I could easily lose balance with the slightest slip due to any laxity or being carried away by the passion or zeal of persuasion of any one side. 171.Therefore, a Court dealing with an application for conservatory orders must maintain the delicate balance of ensuring that it does not delve into issues which are in the realm of the main Petition. In this application, we will, therefore, restrain ourselves from dealing with merit issues. 172.Having said so, we now identify the principles guiding the grant of conservatory orders. But first things first, is the jurisdiction to hear and determine an application for conservatory orders. Rule 23 of the Mutunga Rules provides that:23.(1)Despite any provision to the contrary, a Judge before whom a petition under Rule 4 is presented shall hear and determine an application for conservatory or interim orders. 173.The principles for consideration by a Court in exercising its discretion on whether to grant conservatory orders have been developed by Courts over time. They are now settled. The locus classicus on conservatory orders is the Supreme Court in Civil Application No. 5 of 2014 Gatirau Peter Munya -v- Dickson Mwenda Kithinji & 2 Others (2014) eKLR where the apex Court at paragraph 86 stated inter alia, as follows:(86)… Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant courses. 174.In Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others Nairobi High Court Constitutional Petition No.154 of 2016 (2016) eKLR citing several decisions, the Court rightly so, summarized three main principles for consideration on whether to grant conservatory orders as follows:(a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.(b)Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and(c)The public interest must be considered before grant of a conservatory order. 175.Additionally, in our view, it is important that Courts ascertain whether the grant of conservatory orders sought will hinder expeditious disposal of the main petition and therefore, the dispute. 176.As to what a prima facie case is, in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.” 177.The Court of Appeal in Nairobi Civil Appeal No. 44 of 2014 Naftali Ruthi Kinyua vs. Patrick Thuita Gachure & Another (2015) eKLR dealing with what a prima facie case is, cited with approval Lord Diplock in American Cyanamid vs. Ethicon Limited (1975) AC 396 where the learned Judge stated thus:“If there is no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that is the end of any claim to interlocutory relief.” 178.What constitutes a prima-facie case was further dealt with by the Court of Appeal in Mirugi Kariuki -vs- Attorney General Civil Appeal No. 70 of 1991 (1990-1994) EA 156, (1992) KLR.The Court in allowing an appeal against refusal to grant leave to institute judicial review proceedings by the High Court, stated as follows: -“It is wrong in law for the court to attempt an assessment of the sufficiency of an applicant’s interests without regard to the nature of hi complaint... In this appeal, the issue is whether the applicant in his application for leave to apply for orders of certiorari and mandamus demonstrated to the High Court a prima facie case for the grant of those orders. Clearly, once breach of the rules of natural justice was alleged, the exercise of discretion by the Attorney General under section 11(1) of this Act was brought into question. Without a rebuttal to these allegations, this appellant certainly disclosed a prima-facie case. For that, he should have been granted leave to apply for the orders sought.” 179.In totality, in determining whether a prima-facie case is established, the Court must examine the case as a whole, weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law, but refrain from making merit determinations on any of the issues raised in the petition. 180.Applying the above settled principles to this petition and application for conservatory orders, the petitioners oppose the intended sale of the 6th Respondent Safaricom PLC contending that such disposal to a foreign entity involves a strategic national asset touching on telecommunications, mobile money, data sovereignty and national security; that the respondents have not explained how the personal data held by the 6th respondent is to be handled during the intended sale, which sale does not provide for obtaining of consents of the data subjects who are the subscribers and that there is no disclosure of what came out of the public participation venues. 181.Additionally, the petitioners assert that the intended sale process violates the dictates of Articles 1, 10, 35,201,206, 227 and 238 of the Constitution and that the respondents have unlawfully invoked the statutory provisions of the Public Private Partnerships Act, 2022 to circumvent the Public Procurement and Asset Disposal Act, 2015 and the Privatization Act, 2025. 182.According to the petitioners, the impugned transaction is challenged on its unconstitutionality for lacking transparency, not having been subjected to independent valuation, verification or due diligence to establish a clear, lawful and competitive sale process in compliance with applicable legal and regulatory requirements. That allowing the sale to proceed before final determination of the main petition, risks irreversible prejudice and consequently, the loss of the citizen’s control, dilution of sovereignty and exposure of sensitive national and personal data infrastructure. They accordingly argue that unless the conservatory orders are granted, the petition shall be rendered nugatory. 183.Further assertions by the petitioners in reiteration are that the 6th respondent is a strategic national asset because it carries more than half of Kenya’s mobile telecommunications connections, dominates the mobile money ecosystem and sits at the Centre of digital payments, e-commerce, credit lending and financial inclusion infrastructure in Kenya. The petitioners contend that the 7th respondent, is a private and foreign controlled entity. That the intended sale if allowed to proceed will make the government loose significant control and strategic influence over the telecommunications and digital financial ecosystem in Kenya. 184.Additionally, the petitioners urge that the intended sale will reduce Government Board representation to only two seats in the Board of the 6th Respondent, Safaricom PLC. 185.The petitioners specifically assert that the sale of the Government of Kenya’s 15% shareholding to the 7th respondent at a price of approximately Kshs. 34 per share amounting to Kshs. 204.3 billion, is an undervalue which is injurious to the public interest when compared to the prevailing and intrinsic market valuations. 186.According to the petitioners, the 6th respondent Safaricom PLC has consistently been one of the largest revenue generators for the Republic of Kenya, contributing between Kshs. 18 billion and 20 billion annually and that, selling Government and therefore public shares at Kshs. 34 per share, as opposed to the estimated intrinsic value of Kshs. 70-80 per share, exposes Kenya to a projected loss of approximately Kshs. 250 billion. That the transaction has not been subjected to any transparent, independent valuation process to establish a competitive price or fair market value, in compliance with the Constitution and the applicable law. 187.It is further urged that the intended sale is being undertaken without meaningful public participation and that the 7th respondent’s Kenyan subsidiary already holds 35% of the shares in the telecommunications sector and that if the impugned sale proceeds, the 7th respondent will effectively acquire a controlling interest of 55% leaving the Government with only 20%thereby undermining Kenya’s strategic leverage over critical data infrastructure, mobile money system, competition policy and national security. 188.The petitioners opine that the impugned sale has been instigated without transparent price discovery mechanisms, without multiple bidders, without disclosure or transaction advisors, without valuation reports and without financial market or national risks analyses as required under section 47 of the Public Private Partnership Act (PPP Act), which mandates the coordinated evaluation, valuation and risk assessment to safeguard national and data sovereignty. Further, that the intended sale does not serve public interest and that it unlawfully excludes Kenyan institutional investors and retail investors from bidding. 189.The petitioners posit that the impugned sale violates Article 227 of the Constitution as read with section 4(3) of the Public Private Partnerships Act for refusing to apply the Public Procurement and Asset Disposal Act, 2015. Further, that the respondents have violated the principles of integrity, accountability, prudent use of public resources and ethical leadership. The respondents are also accused of erroneously relying on section 4 of the Public Private Partnership Act 2022, which was never intended to govern disposal of public assets but rather, privately financed projects. 190.According to the petitioners, the concurrent application of the Public Private Partnerships Act and the Public Procurement and Asset disposal Act create constitutional mischief and undermines the safeguards provided by Article 227 of the Constitution. Further, that reducing Government shareholding from 35% to 20% eliminates veto power over major corporate decisions, thereby violating Articles 201 and 238 of the Constitution. Additionally, the petitioners reiterate that the transaction contains no express safeguards on data sovereignty, localization, or protection of personal and financial data of over 30 million Kenyans and that no national security impact assessment has been conducted. 191.The petitioners further assert that statements attributed to the Cabinet Secretary proposing to establish a fund with himself as the sole signatory raise grave constitutional dangers, including concentration of financial power in one individual, evasion of Parliamentary oversight and collapse of accountability, contrary to Articles 206, 201, 73 of the Constitution and the Public Finance Management Act. Further, that the Sessional Paper that approved the sale does not state how the proceeds of sale funds will be utilized and that under Article 209 of the Constitution, revenue raising is only permissible through taxation. According to the petitioners, even members of Parliament were denied the opportunity of public participation and that the Memorandum submitted to Parliament by the Law Society of Kenya was ignored 192.The respondents on their part deny all the above assertions and contend, inter alia, that this court lacks jurisdiction to entertain the application because the impugned transaction has been presented before the National Assembly for approval through Order Paper No. 7 of 12th March 2026, thereby rendering the matter legislative process within the exclusive constitutional mandate under Articles 94 and 95 of the Constitution and that therefore, any intervention by this court would offend the doctrine of separation of powers. 193.The respondents contend that the application for conservatory orders is premature, non-justiciable and offends the doctrine of ripeness as it seeks to challenge an ongoing oversight process as envisaged under article 95(4) (c) and 5(b) of the Constitution which is contrary to the principles set out in the case of Wanjiru Gikonyo and others v National Assembly of Kenya and 4 others [2016] eKLR. 194.They argue that the impugned transaction between the 1st respondent and the 7th respondent is a purely commercial transaction and that the application for conservatory orders improperly seeks to constitutionalize a commercial dispute, thereby abusing the court process. 195.According to the respondents, the 6th respondent, Safaricom PLC would still be subject to the Data Protection Act even if it was 100% foreign owned. That the proceeds of sale shall be invested in the infrastructure Fund and utilized prudently for public goods and reduce the country’s debt burden hence, the orders sought seek to deny the people of Kenya resources, yet Article 23 of the Constitution provides for broad remedial powers of the court, should this Court ultimately find that the sale was illegal. 196.The respondents argue that the petitioners seek to stop a statutory mandated process under section 87A of the Public Finance Management Act and that the sale has already gone through a Parliamentary process which undertook a public participation process as set out in Articles 94 and 95 of the Constitution, with regulatory approvals pending. That no infraction has been demonstrated, Parliament having already approved the sale. 197.The respondents maintain that public participation was undertaken as detailed in the affidavit sworn by the Cabinet Secretary annexing a public notice and that disagreeing with the process of public participation in itself does not per se mean that public participation did not take place. 198.On alleged violation of status quo orders by Parliament, it was urged that Parliament was not a party to these proceedings and could not therefore be bound by the orders of the Court made by Justice L.N. Mugambi on 23/3/2026. 199.That Courts should only issue orders restraining the Government in exceptional circumstances, relying on the South African case of Bako Employees Union (supra) and COFEC v The National Treasury (supra) where Mwamuye J declined to issue orders restraining the sale of KPC and dismissed the petition. That the petition as filed does not say how mama mboga will be affected by the sale of Government shares in the 6th respondent more so, when there are statutory safeguards before the sale can be sealed. 200.As earlier stated, and it is worth reiterating, that at this interlocutory stage, this Court is not called upon to make definitive findings on the legality or propriety of the impugned transaction. The duty of this Court is only to determine whether the Petitioners have established a prima facie arguable constitutional case deserving preservation pending the hearing and determination of the substantive Petition; whether, unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution; whether the petition, if successful will be rendered nugatory unless the conservatory order sought is granted; whether it is in the public interest that the conservatory order is issued; in whose favour the balance of convenience tilts and finally, that the conservatory orders sought should not hinder expeditious disposal of the main petition. 201.The Respondents have urged this Court to find that the proposed sale of government shares in the 6th Respondent Safaricom PLC is a purely commercial transaction falling outside the realm of constitutional scrutiny. However, this Court is unable, at this preliminary stage, to readily accept that proposition without careful interrogation, at a full hearing of the petition. 202.That said, the shares sought to be divested are not private holdings in the ordinary commercial sense. They constitute public assets held by the State on behalf of the people of Kenya. For that reason alone, the process surrounding their disposal inevitably attracts constitutional considerations relating to transparency, accountability, prudent management of public resources and public participation, principles and values which all the parties to this petition concede, are applicable. 203.The Petitioners raise concerns that the value of the shares intended to be sold are undervalued by over 250 billion Kenya shillings, yet Safaricom PLC is a strategic national asset, thereby exposing the public to possible loss and undermining the constitutional principle of value for money. Whether those fears are eventually justified, is a matter that can only be conclusively determined upon the production and testing of evidence at the substantive hearing. Nevertheless, this Court does not at this stage, find such concerns to be frivolous or incapable of constitutional consideration. 204.This Court also takes note of the Petitioners’ assertions that the impugned transaction concerns a strategic telecommunications and digital infrastructure entity whose operations touch millions of Kenyans daily. It is argued that the proposed transfer of substantial control of Safaricom PLC to a foreign majority shareholder entity, may have implications not only for economic sovereignty and innovation, but also for the security and control of sensitive personal, financial and communications data belonging to millions of Kenyan citizens, without an indication as to how that data is how to be handled, without consent of the data subjects and holders. 205.In this Court’s view, those concerns are neither frivolous nor far-fetched because, in today’s digital environment, telecommunications infrastructure carries with it enormous public interest. Such entities are custodians of vast amounts of personal, financial and communications data. Questions surrounding who ultimately controls or accesses such infrastructure are capable of raising legitimate constitutional and national interest concerns touching on privacy, data protection, national security and digital sovereignty hence, the resistance to have the Government shares against disposal to a foreign entity town majority shares. 206.The Petitioners further contend that no adequate financial, security, or public-interest impact assessment was undertaken prior to the intended sale of the Government’s 15% shareholding in the 6th Respondent Safaricom PLC. At this stage, this Court is not determining the truth, falsity or legitimacy of those allegations. However, where a strategic public asset is involved and where allegations are made that critical assessments affecting national and citizen interests may not have been undertaken, if at all the assessment was necessary, this Court cannot simply fold its hands and decline interim preservation of the subject matter of the petition, merely because the transaction is clothed as a commercial shares sale. 207.Equally weighty is the complaint that the process was undertaken without meaningful public participation. Public participation is a constitutional imperative under Article 10, particularly where decisions concern strategic public assets and matters likely to affect the economic and technological future of the nation. The greater the public importance of a decision, the greater the duty upon public bodies to ensure openness, inclusivity and meaningful civic engagement, a process whose path is now well beaten and at the substantive hearing of the petition, this Court will be prepared to delve into that path and establish whether there was compliance with these constitutional principles to the required and established threshold. 208.From our assessment of the material placed before us, and provisionally, we opine that the Petition raises serious and arguable constitutional questions that cannot be resolved summarily at this interlocutory stage. The issues raised spread beyond the confines of ordinary commerce and touch on public trust, management of national assets, constitutional accountability, data protection, national security and the sovereign interests of the people of Kenya. 209.In those circumstances, and without making any final pronouncement on the merits of the Petition, this Court is persuaded that the substratum of the Petition ought to be preserved pending full hearing and determination. We are equally satisfied that if the impugned transaction were to proceed to conclusion before the constitutional questions raised are interrogated, there exists a real possibility that the Petition may be rendered nugatory, thereby defeating the very purpose of constitutional adjudication. We are equally satisfied at this stage that it is in the public interest that the substratum of the petition be preserved. 210.Accordingly, this Court is satisfied that the Petitioners have established a prima facie and arguable case warranting the grant of conservatory relief pending the hearing and determination of the Petition. 211.The Respondents further argue that the Petitioners will suffer no real harm if the intended sale of Safaricom PLC shares proceeds because, should this Court later find in favour of the petitioners, then the shares can simply be returned or the transaction reversed. In addition, it has been urged that since Parliament had already debated and approved the proposed sale, this Court ought not to interfere, as doing so would offend the principle of separation of powers. It was further argued that the application for conservatory orders has effectively been overtaken by events in view of the Parliamentary approval which took place. 212.This Court has carefully considered those arguments. However, at this stage of the proceedings, this Court is not persuaded that the concerns raised by the Petitioners can be dismissed so readily. 213.To begin with, the dispute before us is not merely about the buying and selling of shares in the ordinary commercial sense. The Petitioners have raised broader concerns relating to the disposal of a strategic public asset, including questions of public participation, valuation, national digital sovereignty, data security and the possible transfer of influence and therefore, decision making over critical telecommunications infrastructure to foreign interests. Those concerns, whether ultimately proved or not, cannot be viewed as purely hypothetical or incapable of causing prejudice. 214.This Court is alive to the reality that once such a transaction which has received parliamentary approval but which, as conceded by the respondents, has a long way to go as far as statutory regulatory approvals are concerned, is fully executed, its effects may extend far beyond the formal transfer of shares. Questions of operational and management control, access to sensitive systems, information and communication. corporate decision-making and influence over strategic infrastructure may arise in ways that are not easily reversible. 215.In a sector touching communications, financial transactions as well as personal data of millions of Kenyans, this Court cannot lightly assume that a reversal at a later date, if the petition were to be found to be meritorious, would sufficiently restore the position or cure any constitutional injury that may ultimately be established. 216.We are therefore unable, at this interlocutory stage, to agree with the Respondents’ contention that no prejudice whatsoever would arise if the transaction goes on, notwithstanding the pendence of the petition. 217.The Respondents have further urged this Court to find that the matter has been overtaken by events because Parliament has already approved the proposed transaction. Further, that in any event, parliament is not a party to the petition hence it was not expected to obey any orders issued by this Court. The petitioners on the other hand fault Parliament for approving the transaction while there was a status quo order made by L.N. Mugambi J on 23rd March, 2026. 218.As we resolve this rival position, we are aware that Parliament is not a party to these proceedings and that no contempt proceedings are before us for consideration on their merits. However, from the submissions of the petitioners, possible subjudice due to the pendency of these proceedings and the status quo order was brought to the attention of the Speaker of the National Assembly by the Honourable Caroli Omondi. This information is contained in the annexed Hansard Report. 219.That said, this Court appreciates the constitutional role of Parliament and the importance of respecting the functional independence of the different arms of government. 220.However, the doctrine of separation of powers does not mean that courts must stand aside whenever constitutional questions arise, from decisions taken by Parliament or the Executive. The Constitution itself entrusts this Court with the responsibility of ensuring that all State organs act within constitutional limits. Where allegations are raised that constitutional principles may not have been complied with, this Court cannot sit back and watch merely because another arm of government has already acted hence the judicial authority vested in the High Court under Article 165(3) (d) (ii) of the Constitution to determine the question whether anything said to be done under the authority of the Constitution or of any law is inconsistent with, or in contravention of, the Constitution. 221.More importantly, the material placed before us indicate that although parliamentary approval may have been granted, the transaction itself has not been completed or any contract executed by the time this application was argued. The respondents’ counsel did submit and it is on record that the process is subject to other pending statutory and regulatory processes hence the substratum of the Petition remains intact and capable of preservation. To be specific, the respondents submitted that “the parliamentary approval further provided that completion would occur only upon obtaining those regulatory approvals and through the Block Trade Platform of the Nairobi Securities Exchange. That therefore, Parliamentary approval was not execution; it was one stage in a still-conditioned statutory process.” In those circumstances, this Court is unable to conclude that these proceedings have been overtaken by events, rendered moot or that they are merely academic. 222.This Court is also cognizant of and we emphasize that the granting of conservatory orders at this stage does not amount to the Court usurping the role of Parliament or the Executive. This is so, considering that as at the time that this Court was hearing the application, all the parties submitted that Parliament had already given its approval. Additionally, as at the time that the status quo order was being issued by L.N. Mugambi J, the learned Judge did not injunct Parliament from discussing the Sessional Paper No. 3 of 2025. This position is supported by the fact of the petitioners’ prayer that no such sale should be allowed to proceed without parliamentary approval. 223.More significantly, is that, conservatory relief is, by its very nature, temporary. Its purpose is simply to preserve the subject matter of the dispute so that the Court’s eventual decision, whichever way it goes, is not rendered worthless by events occurring before the petition is fully heard. 224.Besides, at this stage, this Court is not making any final findings on whether the proposed sale is lawful or unconstitutional. Those are matters that will only be conclusively determined after a full hearing and consideration of evidence from all parties. 225.In this case, and having regard to the analysis above, we are persuaded that the Petitioners have demonstrated that they have a prima facie arguable case and that, unless the process of sale of shares by the Government of Kenya in the Safaricom PLC is stayed, there is a real possibility that the Petition may be rendered nugatory before the constitutional questions raised are fully interrogated. 226.Additionally, we are satisfied that the petition raises public interest issues to be determined on merit and therefore it is in the public interest that conservatory orders be issued. Additionally, we find that the balance tilts in favour of granting conservatory orders pending the hearing and determination of the Petition and finally, that the hearing of the petition can be fast tracked by this Court and therefore the question of the petitioners benefiting from the conservatory orders and delaying the finalization of the main petition does not arise. This is so, noting that Rule 3(4) of the Mutunga Rules mandates that this Court in exercise of its jurisdiction under these Rules shall facilitate the just, expeditious, proportionate and affordable resolution of all cases. This Rule mirrors the command in Article 159(2) (b) of the Constitution that in exercising judicial authority, the Courts and tribunals shall be guided by the principles, among others, that justice shall not be delayed. Accordingly, we are satisfied that granting of a conservatory order shall not delay the expeditious determination of the petition as directions shall be given for an expeditious hearing. 227.Therefore, on what orders this court should make, we order that the application dated 26th January, 2026 partially succeeds to the extent that:a.a conservatory order is hereby issued restraining ALL the respondents from proceeding with the intended sale, transfer or alienation of the Government of Kenya’s 15% shareholding in Safaricom PLC to the 7th and 8th respondents or to any other entity or person, pending the hearing and determination of the petition.b.We do not award costs of the application to any party. DATED, SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF MAY, 2026F. GIKONYO M.JUDGE-PRESIDINGR.E. ABURILIJUDGET.W. OUYAJUDGE