The Safaricom deal was signed before public particpation.

The Government of Kenya had already agreed the buyer, signed the principal agreements and inserted KSh34 into the transaction adviser’s mandate before the public and Parliament were asked to consider the sale of 15 per cent of Safaricom.

That sequence now sits at the centre of a 106-page High Court judgment that declared the transaction unconstitutional, invalid, null and void. The three-judge bench quashed Sessional Paper No. 3 of 2025, the approvals and exemptions issued for the deal, the agreements underpinning it and the resulting takeover. It ordered the 6,009,814,200 shares restored to the Government on behalf of the people of Kenya.

The State and Vodacom have said they will appeal. Unless an appellate court stays or overturns the judgment, the legal position is not that the deal has merely been questioned. The transfer has been annulled.

The answer came before the advice.

The Government retained KCB Investment Bank to provide transaction advice and an independent valuation. The engagement documents signed on 31 October 2025 already described the sale of 6,009,814,200 shares at KSh34 each and estimated proceeds of about KSh204.3 billion.

The same mandate instructed the adviser to build a valuation model, benchmark comparable companies, conduct discounted cash-flow analysis and establish a defensible valuation range. KSh34 was therefore both an input supplied before the work and the price the work later supported.

The court declined to determine whether Safaricom was worth KSh70 or KSh80 a share, as the petitioners argued. It also declined to decide whether M-PESA should have been valued separately. Those were technical valuation disputes on which the competing experts disagreed.

The bench reached a narrower and more damaging conclusion. The purportedly independent valuation settled on a predetermined price. It held that the pricing failed the rationality test and was arbitrary.

The judgment found that the State produced no evidence showing how the transaction adviser had been procured, despite holding the relevant records. The petitioners consequently proved, on a balance of probabilities, that the adviser’s appointment breached public-procurement law.

The sale of government shares may fall outside the Public Procurement and Asset Disposal Act. Hiring professional advisers for that sale does not.

A share sale that transferred control.

The transaction was presented under section 87A of the Public Finance Management Act as a partial divestiture by the Government. Its corporate effect was much larger.

Vodafone Kenya’s Safaricom holding would rise from 39.9 percent to 55 percent. Vodacom would own Vodafone Kenya fully. One foreign-controlled entity would acquire effective control of Safaricom.

The deal documents themselves recognised this effect. The KCB engagement called for merger and acquisition advisory services. Vodafone Kenya issued an announcement under the takeover regulations. Filings were made to competition authorities in the region, and COMESA approved the acquisition and associated restructuring.

Kenya’s domestic process stopped short. The Competition Authority of Kenya had told Parliament that the transaction was likely to produce a change of control and had not yet been formally notified to it. The court found no evidence of a later notification, request for approval or authorizing order from the authority.

Section 42 of the Competition Act denies legal effect to a merger implemented without that authorization. The bench held that the acquisition had been camouflaged as a simple sale and transfer of shares, in breach of Kenya’s merger-control rules.

COMESA clearance did not replace the approval required in Kenya.

Parliament considered a deal already done.

The chronology stripped the public process of its purpose.

The Government concluded the Share Purchase Agreement, Dividend Rights Purchase Agreement and Relationship and Cooperation Agreement with Vodafone Kenya on 3 December 2025. Cabinet submitted the sessional paper to the National Assembly on 4 December. Parliament approved the divestiture on 31 March 2026.

The buyer presented to Cabinet, Parliament and the public was Vodacom Group. The agreements were signed with Vodafone Kenya Limited. The two are related, but company law treats them as separate legal persons. Changing from one to the other required disclosure and approval, not an assumption that a parent and subsidiary were interchangeable.

The full share-purchase and dividend-rights agreements were not produced to the court. Only fragments of the relationship agreement were supplied. The court also found that commitments promoted in the sessional paper, including protections associated with Kenyan governance and the business model, were either absent from the operative agreements or expressly non-binding on Vodafone Kenya.

Parliament held 32 committee sittings, engaged 78 institutions and conducted hearings in 30 counties. Those numbers established breadth, not informed consent. The public was never given the complete agreements, the correct account of the buyer or the true legal effect of the transaction.

Participation conducted after the principal contracts had been signed could not influence the choice of buyer, price or structure. The court found it neither reasonable nor meaningful.

The order reaches the completed transaction.

The sale closed on 30 June after the Court of Appeal lifted an interim freeze. That earlier ruling did not decide the legality of the transaction. It allowed completion while the constitutional petition proceeded.

The Court of Appeal also observed that the shares could later be restored and appropriate refunds made. The High Court quoted that passage before ordering restoration. The practical work is formidable. Billions of shillings, dividend rights, securities records and control exercised since completion may have to be unwound. Complexity does not convert a void transaction into a valid one.

An appeal does not automatically suspend the judgment. The State and Vodacom must obtain a stay if they want to preserve the post-sale position while the Court of Appeal considers the merits. The appellate court will weigh more than the inconvenience of reversal. It must confront findings built from the Government’s own engagement letter, contracts, regulatory correspondence, sessional paper and parliamentary record.

Kenya did not lose a lawful sale because judges preferred a different economic policy. The State lost the transaction because it fixed the price before independent advice, signed the agreements before approval, asked the public to discuss incomplete information and transferred control without evidence of domestic merger authorization.

A government may decide to sell a public asset. It may not sign first, disclose selectively and call the remaining process participation.