Kenya High Court: Quashes Solicitor-General CA Payments Opinion

• The Kenya High Court quashed a legal opinion by Solicitor-General Shadrack Mose on September 4.
• The opinion had cleared the Communications Authority of Kenya (CA) to make payments to Nightigale Enterprises.
• Justice Lawrence Mugambi ruled the October 1, 2024 opinion unconstitutional, stating the Attorney-General's office exceeded its mandate.
• The court affirmed that conflict-of-interest matters must be investigated by the Ethics and Anti-Corruption Commission (EACC).
• Nightigale Enterprises was linked to Mary Wambui Mungai, former CA chairperson, whose divestment from the company was central to the dispute.

This ruling by Justice Lawrence Mugambi carries significant implications for public procurement ethics and the delineation of governmental authority in Kenya.

The Kenya High Court has invalidated a legal opinion that had previously cleared the Communications Authority of Kenya (CA) to disburse payments related to a company associated with its former chairperson, Mary Wambui Mungai. In a significant ruling delivered on September 4, Justice Lawrence Mugambi declared the October 1, 2024, opinion issued by Solicitor-General Shadrack Mose to be unconstitutional. This decision effectively quashes the Solicitor-General's advice regarding CA payments, asserting that the Attorney-General's office overstepped its authority.

Justice Mugambi determined that the Solicitor-General's office had exceeded its mandate by making a determination on a conflict-of-interest matter. Such issues, the court affirmed, fall squarely within the investigative purview of the Ethics and Anti-Corruption Commission (EACC). Consequently, the High Court's judgment removes the legal foundation upon which the CA had intended to process payments involving Nightigale Enterprises, a firm previously linked to Ms. Wambui and her daughter. The court explicitly stated that the resulting opinion held no legal effect.

The core of Justice Mugambi's ruling centered on the jurisdictional boundaries between the Solicitor-General's advisory capacity and the EACC's investigative powers. The court emphasized that while the Attorney-General serves as the government's principal legal adviser, this role does not permit the office to assume investigative functions specifically assigned by law to the EACC. The Solicitor-General Shadrack Mose opinion, which found no conflict of interest preventing the CA from processing payments provided contractual requirements were met, was therefore deemed an overreach.

Crucially, the High Court did not conclude that the Digital Superhighway tenders themselves were illegal, nor did it find that Ms. Wambui had committed any offense. Instead, the court underscored that allegations of conflict of interest necessitate a thorough investigation by the EACC before any definitive conclusions can be drawn. Justice Mugambi highlighted the anti-graft agency's specialized powers and expertise to conduct in-depth inquiries into aspects such as changes in Nightigale's ownership, beneficial ownership, potential proxy arrangements, and the movement of funds, affirming the EACC conflict of interest mandate as the appropriate body to initiate such complaints. The court set aside the Solicitor-General's opinion through an order of certiorari legal opinion.

The legal challenge originated from tenders issued by the ICT Authority for the ambitious Digital Superhighway project, which encompasses both backbone and metropolitan fibre networks. Funding for this significant procurement initiative was provided through the Universal Service Fund, which is administered by the CA, while the ICT Authority was responsible for managing the tender process itself.

The Consumer Federation of Kenya initiated the case, raising concerns about the award to Nightigale Enterprises due to its alleged connections to Mary Wambui Mungai. Ms. Wambui had been appointed as the CA chairperson in December 2022, and records indicate she resigned as a director and shareholder of Nightigale just days after her appointment. Subsequently, her daughter also held an interest in the company before eventually exiting. Both the CA and the ICT Authority had maintained that Ms. Wambui had divested from the company prior to the tender process commencing and that the procurement was conducted independently by the ICT Authority, leading to the Solicitor-General's opinion on CA payments to Nightigale Enterprises.

This ruling by Justice Lawrence Mugambi carries significant implications for public procurement ethics and the delineation of governmental authority in Kenya. It unequivocally clarifies that legal opinions from the Attorney-General's office, even from the Solicitor-General, cannot preempt or substitute for the specialized investigative mandate of the EACC, particularly when allegations of conflict of interest arise in public sector dealings.

The judgment reinforces the principle that matters concerning potential corruption or conflicts of interest require the dedicated investigative tools and expertise of the anti-graft body. By quashing the Solicitor-General's opinion, the Kenya High Court quashes Solicitor-General CA payments opinion and has reaffirmed the EACC's critical role in upholding integrity within Kenya public procurement ethics, ensuring that proper channels are followed to scrutinize and resolve such complex ethical questions.

This ruling clarifies the jurisdictional boundaries between the Solicitor-General's advisory role and the EACC's investigative mandate regarding conflict of interest in public procurement. Lawyers and compliance officers should note that legal opinions from the AG's office cannot substitute for EACC investigations into potential conflicts, especially when advising public entities on payment approvals or procurement processes.

Source: Original reporting via Capital FM