The High Court will next month rule on an application seeking to bar two advocates from representing parties in a petition challenging the planned sale of a 15 per cent stake in Safaricom Plc to its parent company, Vodacom Group.
Activist Tony Gachoka, one of the petitioners, wants lawyer Andrew Musangi disqualified from acting for Safaricom and senior counsel John Ohaga barred from representing the Attorney General in the matter.
A three-judge bench directed all parties to file submissions ahead of a ruling scheduled for June 5 2026. The court suspended the planned sale, pending the petitions’ determination.
Activist Tony Gachoka.
Photo credit: File | Nation Media Group
Mr Gachoka and other petitioners argue that the proposed transaction lacked transparency and was not subjected to independent evaluation, verification, or due diligence to ensure a lawful and competitive sale process.
They contend that allowing the sale to proceed before the petitions are resolved could cause irreversible harm, including the loss of citizen control, dilution of sovereignty, and exposure of sensitive national and personal data.
In his latest application, Mr Gachoka argues that Mr Musangi’s role as counsel for Safaricom presents a conflict of interest because he also serves as chairman of the Central Bank of Kenya (CBK) board. He is asking the court to bar him from acting in this matter or any related proceedings.
Mr Gachoka also seeks to prohibit Mr Ohaga from representing the Attorney General or any State organ in the proposed divestiture.
“That the Attorney General has appointed external counsel to represent the State in litigation concerning the proposed divestiture of Safaricom shares, a matter of significant public interest,” Mr Gachoka said.
On Mr Musangi, he submitted that as CBK chairman, he occupies a public office within a key financial regulator that oversees Safaricom’s mobile financial services. A reasonable observer, he argued, would perceive a real likelihood of bias.
“In light of the foregoing, the participation of a sitting CBK Chairman as counsel for a regulated entity presents a paradigmatic case of conflict of interest,” Mr Gachoka said.
He added that even if the chairman does not directly adjudicate Safaricom matters, the institutional role alone creates grounds for apprehension of bias.
Safaricom PLC headquarters in Westlands, Nairobi.
Photo credit: File | Nation Media Group
“The divestiture of a substantial shareholding to foreign entities is not merely a private commercial transaction; it carries regulatory, economic, and public interest implications that fall within the broader oversight mandate of the Central Bank. Consequently, any involvement by the Chairman in such a process, whether direct or indirect, creates a convergence between public duty and private or professional engagement,” he said.
Mr Musangi opposed the application, calling it based on a “fundamental misapprehension of law and the constitutional threshold for disqualification of counsel.”
He argued that the CBK board does not conduct operational regulation, its role being limited to policy, oversight, and governance as defined under the CBK Act. Regulatory actions, he said, are executive functions, not board responsibilities.
“Accordingly, it is clear that there is no regulatory decision-making role exercised by me or my board over the 6th respondent (Safaricom). In addition, and perhaps most relevant, there is no interaction between my role in CBK and this litigation, which relates to a pure shareholder-to-shareholder transaction. There is thus no confidential information overlap,” Mr Musangi said.
He maintained that he has no personal financial or proprietary interest in Safaricom and that his role as an advocate is purely professional and fiduciary, arising from his engagement as legal counsel.
Mr Musangi also said his position as CBK non-executive chairman does not bar him from continuing his work as a senior partner in his law firm or representing clients.
He insisted that the transaction is purely commercial and does not require CBK approval, meaning there is no conflict of interest, “perceived or otherwise.”
