https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1530

Vodafone Group Plc v Goodweek Inter-Services Limited & 3 others (Civil Appeal E732 of 2025) [2026] KECA 1530 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1530 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E732 of 2025 LA Achode, RB Ngetich & S Radido, JJA July 31, 2026 Between Vodafone Group Plc Appellant and Goodweek Inter-Services Limited 1st Respondent Safaricom Plc 2nd Respondent Vodafone Kenya Limited 3rd Respondent Mobitelea Ventures Limited 4th Respondent (Being an appeal from the Ruling of the High Court of Kenya at Nairobi delivered by (E.C. Mwita, J.) on 27th June 2025inConstitutional Petition No. E299 of 2024) Judgment 1.The background of this appeal involves a significant procedural question regarding the service of a foreign defendant, juxtaposed against a substantive constitutional petition concerning the business relationship between a Safaricom dealer and the Safaricom Group. The central issue for our determination is whether the High Court properly assumed jurisdiction over the Appellant, Vodafone Group PLC (Vodafone), a foreign entity, in the absence of leave to serve it out of jurisdiction as prescribed by Order 5 Rule 21 of the Civil Procedure Rules, 2010 (the Rules). 2.The facts are that the Appellant was cited as the 2nd Respondent in Constitutional Petition No. E299 of 2024. The Petitioner, Goodweek Inter-Services Limited (Goodweek), a former dealer of Safaricom PLC, filed a petition challenging the legality of the new "Channel Partner Framework Agreement" and the "Route to Customer" business model. The petition alleges that these changes, which have allegedly caused financial loss to Goodweek, were directives from the Appellant, Vodafone, the ultimate parent company of Safaricom PLC. Consequently, Vodafone was enjoined as a necessary party to determine the constitutional validity of the contractual terms imposed upon the Petitioner. 3.The 1st Respondent, Goodweek, effected service on Vodafone via email and newspaper advertisement pursuant to an ex parte order granted by the Learned Judge, Mwamuye J, on 25th September 2024. Upon being served, Vodafone entered an appearance and filed a Notice of Motion dated 30th October 2024 seeking to be struck out of the petition. The Appellant argued that the service was null and void because Goodweek had failed to obtain leave to serve a foreign defendant outside the jurisdiction, as mandatorily required by Order 5 Rule 21 of the Rules. 4.By a Ruling delivered on 27th June 2025, the learned Judge E.C. Mwita, J., dismissed the application, holding that the order of Hon. Mwamuye, J., had conclusively settled the issue of service and that the Appellant was bound by it. Consequently, the Court found that Vodafone was properly before it and directed the petition to proceed to hearing. 5.Aggrieved, Vodafone preferred the present appeal and concurrently filed an application under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings in the High Court. On 11th November 2025, a bench comprising Musinga(P), J Ngugi, and Odunga (add JJA.) heard the stay application. It was during this hearing that the 1st Respondent raised a preliminary objection, arguing that the appeal ought to be struck out because the Notice of Appeal and Record of Appeal had not been served on the 4th Respondent (Mobitelea Ventures Limited). The bench ultimately granted the stay of proceedings but directed that the 1st Respondent’s application to strike out the appeal be heard and determined together with the main appeal by the bench hearing the substantive matter. 6.During the hearing on 10th March 2026, Ms. Asli, learned counsel for the 2nd Respondent, informed court that the 2nd Respondent was not opposed to the appeal while Ms. Kirimi Learned counsel holding brief for Mr. Mc Court for the 3rd Respondent informed the court that the 3rd Respondent did not participate in the application before the High Court, that the application does not concern the 3rd Respondent and were therefore not participating. 7.The Memorandum of Appeal dated 5th September 2025 contains fourteen (14) grounds. At the hearing of the appeal, Mr. Esmail,learned counsel for the Appellant, distilled these grounds into four core clusters for determination as set out hereunder:a.Whether Order 5 Rule 22B of the Civil Procedure Rulesnegates the mandatory requirement under Order 5 Rule 21 to obtain leave to serve a foreign defendant: (use ;)b.Whether the learned Judge misapplied the (lex specialis derogat legi generali italicize) principle;c.Whether the learned Judge erred by treating the Appellant’s knowledge or entry of appearance as a substitute for valid serviceand,d.Whether the specific mode of service (email) was fatally defective: 8.On whether Order 5 Rule 22B negates the mandatory requirement under Order 5 Rule 21 to obtain leave to serve a foreign defendant, Mr. Esmail, learned counsel for the Appellant, submitted that Order 5 Rule 21 is a mandatory statutory gateway for serving foreign defendants. He relied on this Court’s decisions in Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] KECA 312 (KLR) and Misnak International (UK) Limited v 4MB Mining Limited [2019] KECA 471 (KLR)to argue that a Kenyan court only assumes jurisdiction over a foreign defendant after leave is granted and service is effected. He submitted that the 1st Respondent’s failure to seek leave rendered the subsequent service a nullity, regardless of the substituted service order obtained ex parte. He further submitted that the High Court erred in relying on the ruling of Mwamuye, J. to validate a process that was fundamentally flawed from inception, citing the Supreme Court’s decision in Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR) to argue that a court may question the propriety of an order obtained through material non- disclosure—specifically, the failure to disclose the foreign status of the Appellant. 9.On the misapplication of the lex specialis principle, Counsel submitted that the learned Judge erred in law by characterizing Order 5 Rule 21 as a general provision. It was argued that Order 5 Rule 21 is a specific provision exclusively governing extra-territorial service on foreign defendants, whereas Order 5 Rule 22B is a general procedural rule for electronic service. Relying on the maxim generalia specialibus non derogant, a general law yields to a special law, and citing the persuasive High Court decision in M J v N K & another [2017] KEHC 4238 (KLR), ,Counsel argued that the general provisions of Rule 22B cannot override or dilute the specific mandatory leave requirement under Rule 21. By elevating Rule 22B, the trial court failed to appreciate the protective policy behind the leave requirement, which acts as a jurisdictional filter to prevent foreign defendants from being unnecessarily vexed by local proceedings where there is no reasonable nexus. 10.In respect to treating the Appellant’s knowledge or entry of appearance as a substitute for valid service, the Appellant contended that the court erred in law by holding that the Appellant’s filing of a Notice of Appointment and participation in the proceedings cured the jurisdictional defect. It was submitted that jurisdiction over a foreign defendant cannot be conferred by acquiescence, waiver, or informal knowledge, and that the question of jurisdiction cannot be waived. 11.On whether the specific mode of service by email was fatally defective, in the alternative, the Appellant submitted that even if electronic service were permissible, the 1st Respondent failed to comply with the mandatory requirements of Order 5 Rule 22B(2) and (4) of the Civil Procedure Rules. It was argued that service was directed to a fictitious, non-existent email address (legal@vodafone.com) and that no delivery receipt was filed to prove service, rendering the purported service legally ineffective. 12.In response, Dr. Kiplagat, learned counsel for the 1st Respondent, raised a preliminary objection to the competence of the appeal and specifically applied for the striking out of the Notice of Appeal and Record of Appeal under Rule 86(b) of the Court of Appeal Rules. He advanced 4 main limbs. 13.Firstly, on the locus of the appeal, he submitted that the Appellant failed to file a notice of appeal against the specific ruling of Mwamuye, J. dated 25th September 2024. Relying on Joseph Ndirangu Waweru t/a Mooreland Mercantile Co. & Another v City Council of Nairobi [2015] eKLR, Attorney General v W.O.1 Samuel Chege Gitau & 283 others [2023] KECA 1386 (KLR), and Mawathe Julius Musili v IEBC & Another [2018] eKLR, he argued that the issue of service was definitively settled by that ruling and had become res judicata. Consequently, he contended that the subsequent ruling of Mwita, J., dated 27th June 2025, was merely obiter on the issue of service and could not be used as a vehicle to challenge the earlier decision. 14.Secondly, on service of the appeal, he argued that the appeal was incompetent because the Notice of Appeal and Record of Appeal were not served on the 4th Respondent, and no leave was sought to dispense with such service. Relying on Hindocha v Chena [2024] KECA 819 and Otuga v Ouko & another [2023] KECA 842, he submitted that Rule 92(1) of the Court of Appeal Rules is couched in mandatory terms, and failure to comply renders an appeal liable to be struck out under Rule 86(b) of the Court of Appeal Rules 15.Thirdly, on the integrity of the Record, he submitted that the Appellant’s Supplementary Record of Appeal was fatally defective. Citing Muiruri & 5 others v Muiruri [2024] KECA 879 and Mjambili v Amri [2025] KECA 886, he argued that the Supplementary Record contained new evidence, specifically, a Business Registration Service search regarding the 4th Respondent that was not before the trial court, and which was filed without leave as required under Rule 31(1)(b) of the Court of Appeal Rules. He urged the Court to expunge the Supplementary Record and disregard submissions based thereon. 16.Finally, he submitted that the appeal was an abuse of court process as the Appellant was impermissibly litigating on behalf of a third party, the 4th Respondent. He argued that the Appellant's contention that the 4th Respondent does not exist based on an internet search rather than a gazette notice as required by the Companies Act citing Casmil Lucas Nyangau & 9 others v Gusii Mwalimu Sacco Limited & another [2017] KEHC 4818 (KLR) introduces a contested factual matter that can only be determined by the trial court, not by this Court on an interlocutory appeal. 17.We have carefully considered the record, the submissions, the authorities cited and oral submissions by counsel (during the hearing. We must first dispose of the 1st Respondent’s application to strike out the appeal. 18.On the first limb regarding the striking out of the appeal for non- service of Mobitelea, we find this argument entirely unmeritorious. Rule 79 of the Court of Appeal Rules requires that a notice of appeal be served on all persons "directly affected by the appeal" (see Baluchi v Giriama Central Properties Association & 2 others [2023] KECA 646 (KLR). This appeal does not concern Mobitelea. It is a narrow appeal challenging the High Court's assumption of jurisdiction over a foreign defendant (Vodafone) for failure to obtain leave under Order 5 Rule 21. The outcome of this appeal will not adversely affect Mobitelea's rights, as the issue of Vodafone's service is distinct from the merits of the petition against Mobitelea. We note that the 1st Respondent, having cited Mobitelea in the Superior Court without providing an address for its service, cannot now rely on the very non-service it occasioned to strike out this appeal.Furthermore, the 1st Respondent lacks the standing to agitate an objection on behalf of a non-participating party merely to defeat the Appellant's right of appeal. 19.Consequently, it was unnecessary for the Appellant to file the Supplementary Record of Appeal to prove that Mobitelea does not exist. Since we have found that Mobitelea is not directly affected by this specific appeal, the non-service of the Notice of Appeal upon it is not fatal. We therefore disregard the Supplementary Record of Appeal as moot, without making any finding on the contested existence of Mobitelea, leaving that issue entirely to the High Court. The application to strike out the appeal is dismissed. 20.On the second limb of res judicata, while it is true that interlocutory orders not appealed become final, the present appeal is not a collateral attack on Mwamuye, J.’s order per se; rather, it is a direct challenge to the ruling of Mwita, J., which affirmed that the Appellant was properly before the court. The issue of jurisdiction is fundamental and can be raised at any stage, even for the first time on appeal (see Kenya Revenue Authority v Hemed & another [2023] KECA 453 (KLR). Furthermore, Fnikiwa supra establishes that procedural irregularities or misrepresentations leading to an order may be examined to prevent injustice. We find this limb of the objection unmerited. 21.Having disposed of the preliminary objections, the singular substantive question that falls for our determination is whether the High Court was right to find that the Appellant was properly served and thereby subject to its jurisdiction. 22.It is trite law that jurisdiction is everything. It is the blood that gives life to a court’s proceedings (see The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1). The jurisdiction of Kenyan courts over foreign defendants is not unfettered; it is regulated by statute and the Rules of Court to prevent the vexatious suing of foreign entities in local courts where there is no reasonable nexus. 23.Order 5 Rule 21 of the Civil Procedure Rules provides:“21.(1)A summons or notice of summons may be served out of Kenya –… (c) only with the leave of the Court.” 24.The word “only” in the sub-rule denotes a mandatory condition. A plaintiff intending to serve a foreign defendant must first convince the court that the cause of action is one that permits such service. This requirement serves as a jurisdictional filter. It is not a procedural technicality that can be cured by a subsequent order for substituted service. This position was affirmed in DNK v GS [2022] KEHC 547 (KLR) and EK v PT [2024] KEHC 11722 (KLR), where the High Court held that Order 5 Rule 22B (electronic service) does not override the mandatory provisions of Order 5 Rule 21. 25.In the instant case, it is not disputed that Vodafone is a foreign company. The address on the face of the petition clearly indicates a location in London, UK. The record shows that before filing the petition, Goodweek did not make any application for leave to serve Vodafone out of jurisdiction under Order 5 Rule 21. 26.Instead, Goodweek obtained an ex parte order from Mwamuye, J. on 25th September 2024 for substituted service via email and newspaper advertisement. We have perused the application leading to that order. It was a standard application for substituted service, predicated on the premise that the defendants were evading service within the jurisdiction. There is no indication that the court was moved to grant leave under Order 5 Rule 21. 27.We find that the High Court erred in law by holding that the order of Mwamuye, J. somehow validated the service. An order made in the absence of a party cannot confer jurisdiction where none exists. To allow a litigant to bypass the mandatory leave of the court under Order 5 Rule 21 by simply seeking substituted service would render the protective provisions of Order 5 Rule 21 nugatory. Mwita, J. failed to appreciate that a defect in jurisprudential foundation, being lack of leave, cannot be cured by a procedural order for substituted service. On this point, the appeal succeeds. 28.Having found that the learned Judge erred in law, the strict, traditional legal remedy available to the Appellant would be an order striking out its name from the proceedings for lack of jurisdiction. However, this Court is not bound by rigid procedural technicalities where the substantive interests of justice, particularly in a constitutional sphere, demand a more nuanced approach. We must look at the broader picture to determine what the ends of justice require. When a court considers an application for leave under Order 5 Rule 21of the civil procedure Rules, the primary test is whether the plaintiff has established a prima facie case against the foreign defendant that discloses a reasonable cause of action. We have therefore perused the Petition and the Supporting Affidavit to ascertain whether, prima facie, a reasonable nexus exists between the Appellant and the dispute. 29.The 1st Respondent has pleaded specific, material facts linking the Appellant directly to the constitutional grievances raised. For instance, in the Supporting Affidavit and the annexed minutes of a meeting held on 13th February 2024 between the dealers and Safaricom’s management, it is explicitly pleaded that Safaricom’s officers informed the dealers that the contentious positions in the new contracts were "pre-approved by Safaricom’s executive committee and constituted a directive from Vodafone and that Safaricom’s hands were tied." Furthermore, the petitioner avers that the "Route to Customer" model and the oppressive contractual terms were not merely local decisions, but were part of a Group-wide policy originating from the Appellant as the ultimate parent company. 30.While the Appellant vehemently denies these assertions, arguing it has no trading ties in Kenya and is a mere shareholder, we are alive to the principle that disputes touching on corporate governance, the imposition of group-wide policies, and the alleged violation of fundamental rights by an entity controlling a strategic national asset like Safaricom PLC carry a heavy public interest element. On the face of the pleadings and the material annexed thereto, we are satisfied that a prima facie case has been established to warrant the Appellant's presence in the suit. 31.The Appellant submitted that this Court should not grant leave nunc pro tunc, arguing that there is no nexus between it and the dispute. We have considered this submission. However, on a perusal of the Petition, it is evident that the dispute centers on the governance of the Safaricom Group and the implementation of Group-wide policies allegedly originating from Vodafone. 32.The crucial question then becomes the appropriate remedy. One option would be to remit the matter to the High Court for the 1st Respondent to file a formal application for leave under Order 5 Rule 21.However, we are not inclined to take this course of action for two reasons. First, an application for leave to serve out of jurisdiction is, by its very nature, an ex parte application. The Appellant is already a fully served party, is on notice, and is actively represented before this Court and the High Court. To remit the matter to the High Court for the 1st Respondent to file an ex parte application, when the Appellant has spent time robustly arguing against the very existence of a prima facie nexus, would be an empty formality and a waste of scarce judicial time. 33.Secondly, the purpose of the ex parte leave requirement under Order 5 Rule 21 is protective: it is designed to shield a foreign defendant who is unaware of the proceedings from being unnecessarily vexed. That protective purpose is entirely moot in this case. The Appellant is aware of the proceedings, has actively participated in them, and has had a full and fair opportunity to argue against the Court assuming jurisdiction over it. The Appellant has suffered no prejudice whatsoever by the 1st Respondent’s procedural omission; indeed, the Appellant has utilized the process to its fullest extent. 34.In the circumstances, we find that the most judicious course of action, guided by the overriding objective espoused in Article 159(2)(d) of the Constitution that justice shall not be delayed and the inherent powers of this Court to prevent an abuse of the court process, is to regularise the procedural defect. We exercise our inherent jurisdiction to grant the leave nunc pro tunc, meaning “now for then,” effectively curing the omission by the 1st Respondent, while penalising them for the procedural breach through an award of costs. 35.In respect of the 4th Respondent, Mobitelea Ventures Limited, we note the dispute regarding its existence and the 1st Respondent’s objection to the Supplementary Record of Appeal. In light of our decision to regularize the service on the Appellant, it is unnecessary to make a definitive finding on the status of Mobitelea based on the contested documents in the Supplementary Record. We therefore disregard the contents of the Supplementary Record of Appeal. The High Court is at liberty to determine Mobitelea's status and service as the proceedings unfold. 36.From the foregoing, we make the following orders:a.The Appeal is allowedb.The Ruling of the High Court (E.C. Mwita, J.) dated 27th June 2025 is hereby set aside insofar as it held that the Appellant was properly served without leave.c.Leave is hereby granted to the 1st Respondent to serve the Appellantd.The service already effected on the Appellant is hereby regularised and validated.e.The Appellant shall remain a party to Constitutional Petition No. E299 of 2024.f.The Appellant shall have thirty (30) days from the date of this Judgment to file and serve its Response to the Petition, if it has not already done so.g.The Respondent shall bear the costs of the Appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.L. ACHODEJUDGE OF APPEAL...................................R. NGETICHJUDGE OF APPEAL...................................RADIDO S. OKIYOJUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR