By 
By Fintech Association of Kenya
There are court cases that settle disputes, and there are court cases that reveal how a country understands power.
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The Court of Appeal’s decision to allow the government’s partial sale of Safaricom shares to proceed, even as constitutional challenges continue in the High Court, belongs in the second category.
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“Ownership, proceeds, dividends, investor confidence, and the cost of delay”
On paper, this is a commercial matter: a cash-strapped State selling part of its stake in Kenya’s most profitable company to raise funds. In market language, it is about ownership, proceeds, dividends, investor confidence, and the cost of delay.
But in constitutional terms, it asks a simpler and more serious question: what is the point of allowing citizens to challenge the sale of a public asset if the asset can be transferred before the challenge is heard?
That is the discomfort at the center of this case. The issue is not whether Kenya should privatize more state assets. A serious country can debate that honestly. Governments sell stakes in strategic companies to raise funds, reduce fiscal pressure, deepen markets, or reallocate public capital. Nor is the issue whether investors deserve certainty. They do. Capital hates delay.
The question is whether constitutional review should become meaningless once a transaction is large enough.
“High Court froze sale of a 15% government stake in Safaricom”
In May, the High Court froze the sale of a 15% government stake in Safaricom pending the determination of petitions filed against the divestiture. The Court of Appeal has now allowed the sale to proceed while those cases continue. That may be legally defensible within the court’s understanding of stay principles.
But institutionally, it creates an obvious problem. Once the sale is completed, ownership changes hands, money moves, corporate control adjusts and market expectations settle. If the High Court later finds defects in the process, what then?
Does the court unwind a multibillion-shilling transfer involving listed securities, strategic investors, public shareholders, and regulatory approvals? Or does the litigation become an elegant obituary for a remedy that no longer exists?
That is the danger. A right without an effective remedy is not a right in any practical sense.
Sale of Safaricom is a public-interest event
Safaricom is not an ordinary public asset. It is a telecoms company, a payments rail, a credit gateway, a data platform, a public service partner and, through M-PESA, a piece of Kenya’s economic bloodstream. A change in its ownership structure is therefore not merely a shareholder event. It is a public-interest event.
This is why process matters. The price matters. The timing matters. The public participation record matters. Parliamentary approval matters. The treatment of litigants matters. And because Safaricom sits at the intersection of telecommunications, payments, credit, data and public infrastructure, the governance question matters even more than it would in an ordinary listed company.
The procedural concerns around the appeal deepen the unease. One litigant has complained that he was not served with the Treasury’s appeal despite being a party to the case and that he was given only a short time to obtain pleadings and prepare a response.
Those details may sound technical. They are not. Service is not paperwork. It is the foundation of the right to be heard. In a case involving a strategic public asset, justice must be seen to work for the State, investors and citizens alike.
“Not an anti-investor argument but a pro-institution argument”
The optics are also difficult. Kenya is a country where many cases take years to move. Land disputes drag. succession cases drag. commercial disputes drag. ordinary citizens wait. Against that background, exceptional speed in a politically and fiscally important matter will always attract scrutiny.
The problem is not that courts moved quickly. Courts should move quickly more often. The problem is selective speed. A judiciary that can accelerate when the State needs a transaction cleared must explain why the same urgency is so rarely available when ordinary citizens need remedies.
This is not an anti-investor argument. It is a pro-institution argument.
The best investors do not fear courts that enforce constitutional limits. They fear countries where rules shift with political pressure, where public assets are sold through contested processes, where dissenting citizens are treated as irritants, and where legality is regularized after the money has moved. A country does not build investor confidence by making constitutional review look optional. It builds confidence by making due process predictable.
“Fiscal pressure is not a constitutional exemption”
The State may have a valid fiscal case. Kenya needs money. Public assets can be sold. Strategic investors can bring value. But fiscal pressure is not a constitutional exemption. A government short of cash must still obey procedure. A transaction backed by policy urgency must still survive legal scrutiny. Development does not convert public assets into executive inventory.
The better approach is disciplined sequencing. Let the High Court determine the substantive petitions on an expedited basis. Let the government defend the sale fully. Let the petitioners test the process. If the sale is lawful, it will proceed with stronger legitimacy. If it is defective, Kenya will have avoided transferring a strategic public asset under a cloud.
That is not obstruction. It is constitutional housekeeping.
The Safaricom sale may still prove economically sensible. It may raise needed funds. It may strengthen strategic ownership. It may reassure some investors that large transactions can close. But if it proceeds before the constitutional questions are resolved, it will carry a shadow that no dividend top-up can wash away.
The test before Kenya is not whether the State can sell. It can. The test is whether the State can sell in a way that leaves the courts meaningful, citizens heard and institutions intact.
A public asset should not move faster than the Constitution.
The sale will likely close. The funds will likely arrive. And somewhere in a High Court registry, a petition will keep moving toward a judgment that no longer has anything left to decide. That is how a remedy dies in a country that still calls itself constitutional.
Courtesy: FINTAK Weekly Newsletter
