A three-judge bench of the High Court has issued conservatory orders halting the government’s planned sale of its 15 percent shareholding in Safaricom PLC to Vodacom, pending the determination of a constitutional petition challenging the deal.
The bench comprising Justices Francis Gikonyo, Roselyne Aburili and Tabitha Ouya held that the petition raises substantial constitutional and public interest questions that merit full consideration at trial. The judges said the balance of convenience favored granting the interim orders.
“We are satisfied that the matter is of public interest and that the balance tilts in favor of granting the orders,” the court stated, adding that the conservatory orders would not hinder the expedited hearing of the case.
The court further directed that all respondents are restrained from proceeding with or completing any steps related to the sale until the matter is heard and determined. In its ruling, the bench emphasized that the shares in question are not ordinary commercial assets but public property held by the State on behalf of Kenyan citizens.
“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 the Republic of Kenya,” the judges observed.
The court noted that the proposed transaction raises important constitutional issues including transparency, accountability, public participation, and the prudent management of public resources. The petitioners had argued that the government’s stake in Safaricom was allegedly undervalued by more than Sh250 billion, warning that the transaction could result in significant public loss and violate the principle of value for money.
While the court did not make any findings on the merits of those claims, it held that the issues raised were serious enough to justify preservation of the subject matter pending a full hearing. The judges also pointed out that Safaricom is a key national telecommunications and digital infrastructure provider whose services are integral to millions of Kenyans. They noted that transferring significant control to a foreign majority shareholder raises legitimate concerns regarding economic sovereignty, innovation, data privacy, national security, and digital governance.
“In today’s digital era, telecommunications infrastructure carries immense public importance,” the bench stated, adding that companies such as Safaricom hold vast volumes of personal, financial, and communications data.
The petitioners further contended that no sufficient financial, security, or public interest assessment was conducted before the proposed divestiture. The court held that while it was not determining the accuracy of those allegations at this stage, they were weighty enough to warrant preservation of the status quo until the petition is fully resolved.
The judges dismissed arguments by the respondents that the conservatory orders would prejudice them, finding instead that maintaining the current position was necessary in the interests of justice pending final determination of the case.
