NAIROBI, Kenya, Sept. 4 – The High Court has quashed a legal opinion that cleared the Communications Authority of Kenya (CA) to make payments linked to a company associated with its former chairperson Mary Wambui Mungai.
Justice Lawrence Mugambi declared unconstitutional the October 1, 2024 opinion by Solicitor-General Shadrack Mose, saying the Attorney-General’s office had exceeded its mandate by determining a conflict-of-interest matter that should be investigated by the Ethics and Anti-Corruption Commission (EACC).
The ruling removes the legal basis the CA had relied on to process payments involving Nightigale Enterprises, a company previously linked to Wambui and her daughter.
“The resulting opinion is thus unconstitutional and of no legal effect,” Justice Mugambi ruled.
The judge, however, did not find that the Digital Superhighway tenders were illegal or that Wambui had committed an offence.
Instead, he said allegations of conflict of interest required investigation by the EACC before any conclusion could be reached.
Mugambi said the anti-graft agency had the powers and expertise to investigate changes in Nightigale’s ownership, beneficial ownership, possible proxy arrangements and the movement of funds.
“EACC is the appropriate forum to initiate the complaint for in-depth investigation given that it has the necessary investigative tools, and expertise to get into the bottom of the matter.”
The case arose from tenders issued by the ICT Authority for the Digital Superhighway project, including the backbone and metropolitan fibre network.
The procurement was funded through the Universal Service Fund administered by the CA, while the ICT Authority was responsible for conducting the tender process.
The Consumer Federation of Kenya challenged the award to Nightigale, arguing that the company was linked to Wambui, who was then chairperson of the CA.
Wambui was appointed CA chairperson in December 2022 and resigned as a director and shareholder of Nightigale days later. Her daughter later held an interest in the company before also exiting.
The CA and ICT Authority maintained that Wambui had divested from the company before the tender process and that the procurement was independently conducted by the ICT Authority.
The Solicitor-General later advised that there was no conflict of interest preventing the CA from processing payments, provided the contractual requirements had been met.
The High Court has now set aside that opinion through an order of certiorari.
The court said the Attorney-General, while serving as the government’s principal legal adviser, could not take over the investigative role assigned by law to the EACC.
