Court of Appeal declines to suspend ruling nullifying Ksh.204B Safaricom share sale

The government has suffered another setback in its bid to overturn the nullification of the Ksh.204.3 billion sale of its 15 per cent stake in Safaricom to Vodacom after the Court of Appeal declined to suspend the High Court ruling.

Appellate Court judges Luka Kiprotich Kimaru, Johnson Okello and Kathurima M’Inoti rejected an application seeking to stay the September 15, 2026, judgment pending the hearing and determination of the government’s intended appeal.

The judges ruled that the application had failed to meet the required legal threshold for the orders sought.

The government, through the Office of the Attorney General, had challenged a decision by High Court judges Francis Gikonyo, Roseline Aburili and Tabitha Wanyama, who declared the partial divestiture of the government’s Safaricom stake unconstitutional, null and void.

In their ruling, the three High Court judges found that the government’s decision to sell the 15 per cent stake was a public policy matter that required meaningful public participation before the transaction could proceed.

The court held that neither the Cabinet nor the National Assembly had subjected the proposed sale to adequate public participation.

It also faulted the government for failing to provide sufficient information about the transaction, including the identity of the intended buyer, finding that the lack of transparency undermined the constitutional requirements of accountability and public participation.

Consequently, the court quashed agreements, approvals and arrangements relating to the sale, merger, takeover or transfer of the shares and ordered the 15 per cent stake to be restored to the Government of Kenya, to be held on behalf of the people.

Following the judgment, Attorney General Dorcas Oduor and National Treasury Cabinet Secretary John Mbadi moved to the Court of Appeal, seeking to overturn the decision and suspend its implementation pending the determination of their appeal.

In affidavits sworn on September 17, 2026, the two officials argued that the Ksh.204.3 billion proceeds from the transaction were non-refundable, while the shares had already been transferred to Vodafone Kenya Limited.

The government also argued that an additional Ksh.40.2 billion had been paid in lieu of future dividends.

It further maintained that restoring the government’s six million ordinary shares without a corresponding order for the refund of the purchase price would expose the state to financial prejudice.

The government warned that implementing the High Court orders could be difficult or impossible to reverse, arguing that the dispute raised issues of public interest involving fiscal planning, capital market stability, investor confidence and the country’s external position.

It had asked the appellate court to suspend the High Court judgment until its appeal was heard and determined, warning that failure to grant the orders would render the appeal nugatory.