39 Days of Silence: Why COFEK Wants the Ombudsman to Force EACC's Hand on the Mary Wambui Tender Probe

NAIROBI, October 13, 2026 — The Consumers Federation of Kenya (COFEK) has asked the Commission on Administrative Justice (CAJ), the Office of the Ombudsman, to step in and compel the Ethics and Anti-Corruption Commission (EACC) to act on a conflict-of-interest complaint over Digital Super Highway tenders awarded to Nightigale (EA) Ltd — a company once majority-owned by the family of former Communications Authority of Kenya (CA) chairperson Mary Wambui Mungai.

In a seven-page protest dated October 12 and addressed to CAJ Chairperson Hon. Charles Orinda Dulo, COFEK says the EACC has gone thirty-nine days without issuing an acknowledgment, a reference number, a holding response or any reasons — despite a High Court judgment that pointed to the EACC by name as the body with the mandate to investigate.

The protest targets EACC Chief Executive Officer Abdi Ahmed Mohamud personally. Under section 7(1) of the Access to Information Act, 2016, the CEO of a public entity is its information access officer. "The duty to decide COFEK's applications, and to communicate that decision in writing, rested on him by operation of law," the letter states.

How the matter landed at EACC's door

On September 3, 2026, Justice Lawrence N. Mugambi delivered judgment in Consumers Federation of Kenya v Information and Communication Technology Authority & 4 Others (HCCHRPET/E683 of 2024). The court did two things that now sit at the heart of COFEK's protest.

First, it quashed as unconstitutional, null and void the Attorney General's advisory opinion of October 1, 2024, which had purported to clear the Nightigale award of conflict of interest. The court held that the opinion usurped the EACC's mandate under Article 79 of the Constitution.

Second, applying the doctrine of constitutional avoidance, the court declined to decide whether a conflict of interest existed, holding instead that the EACC is the body with the mandate and expertise to inquire into it.

The underlying allegation is that while Ms Wambui chaired the CA — which manages the Universal Service Fund financing the project — Nightigale won framework contracts under the ICT Authority's Digital Super Highway programme. Court papers in the petition list her daughter, Evelyne Nyambura Mungai, as having held 70 per cent of Nightigale's shares. Ms Wambui has denied wrongdoing, maintaining that she had fully divested before the tender process and did not participate in or influence the procurement. In 2025, the Solicitor General and the CA backed the procurement as lawful. The High Court made no finding either way.

The project is budgeted at more than Sh15 billion drawn from the Universal Service Fund. The complaint concerns Tender Nos. ICTA/OT/11/2022-2023 and ICTA/OT/13/2022-2023 and related maintenance Contract Nos. 2302210 and 2240177.

A complaint met with silence

The day after judgment, on September 4, COFEK lodged a formal complaint with the EACC (Ref. COFEK/EACC/CAK/4/9/26), stamped received the same day, expressly asking for written acknowledgment and a reference number.

Nothing came. On October 5, COFEK sent a reminder (Ref. COFEK/EACC/CAK/5/10/26), stamped received by both the EACC and the CA. It gave the EACC seven days to provide four things: acknowledgment and a reference number; confirmation of whether a formal investigation had been opened and when; the steps taken to preserve records, including Business Registration Service files for the Nightigale entities and procurement, board and payment records at the CA, the ICT Authority and the Universal Service Fund; and a timeline for concluding the inquiry.

That deadline lapsed on October 12. The EACC has not sought an extension of time.

One letter, three legal actions

COFEK has framed its protest so that the CAJ must register it as three things at once:

• a complaint of maladministration and unresponsive official conduct under section 8 of the Commission on Administrative Justice Act, 2011;
• a complaint under section 22 of the Access to Information (ATI) Act for non-compliance with the Act; and
• an application for review under section 14 of the ATI Act of the EACC's deemed refusal of COFEK's applications for information.

The three-pronged framing matters. The CAJ is the oversight and enforcement body under the ATI Act, and section 23 empowers it to order the release of information, with non-compliance carrying consequences under section 28.

The legal argument: silence is a refusal

COFEK's case rests on the clock. Section 9(1) of the ATI Act requires a decision on an information request within 21 days. From September 4, that window closed on September 25. The EACC did not invoke the single 14-day extension the Act allows, which in any case requires written notice to the applicant.

Under section 9, failure to decide within time is deemed a refusal. On COFEK's reading, the application was refused by operation of law on September 25, and the October 5 reminder was an opportunity to cure the default that went unused. Section 11 then required written notice with reasons and a statement of the right to seek CAJ review. None was given.

COFEK also anticipates the EACC's most likely defence: that disclosure could prejudice an investigation. It argues that an acknowledgment, a reference number, whether an investigation is open, and what records have been preserved are status information whose disclosure cannot compromise any probe. Even if an exemption arguably applied, section 6(4) allows the public interest in disclosure to prevail — which, COFEK says, it plainly does where Sh15 billion of public funds and a High Court referral are at stake.

The constitutional anchors are Article 35(1)(a) on access to information, Article 47 on expeditious and fair administrative action, and the transparency and accountability values in Articles 10, 73 and 232. On the EACC's independence, the letter is pointed: "Independence is a shield against interference, not a licence to ignore the public."

The beneficial ownership question

The most striking section of the protest asks whether the EACC is shielding the beneficial owner of Nightigale. COFEK notes that under section 93A of the Companies Act, 2015 and the 2020 Beneficial Ownership Regulations, every company must lodge a register of its beneficial owners with the Registrar. The EACC, it argues, could obtain those records for the three Nightigale entities "in days, if not hours."

COFEK poses four questions: whether the EACC has requested those records; whether the identity of any owner, director or shareholder explains the silence; whether anyone inside or outside government has communicated with the EACC in breach of its Article 249(2) independence; and why a commission that acts swiftly elsewhere has left a Sh15 billion judicial referral unacknowledged.

The federation is careful to add that it does not allege the EACC is shielding anyone — only that unexplained silence invites the question, and only the EACC can dispel it. The irony it highlights is sharp: the same judgment that referred the complaint to the EACC also vindicated the EACC's own mandate by striking down the Attorney General's opinion for usurping it.

There is also a practical urgency. Each day of inaction, COFEK warns, risks the loss of records and further payments made on the strength of an opinion the court has declared void.

What COFEK is asking the Ombudsman to do

The reliefs sought include registration of the protest with a reference number within seven days; a notice requiring Mr Mohamud to show cause within seven days why he failed to comply with sections 9 and 11 of the ATI Act and Article 47; an order under section 23 directing the EACC to release the information sought; a direction that the EACC state whether it has obtained the Nightigale beneficial ownership records; a finding of unresponsive official conduct and maladministration, recorded in any report under Article 254; and recommendations for administrative action against any officer found responsible.

Analysis: why the Ombudsman, and why now

The choice of forum is deliberate. COFEK says it has gone to the CAJ first to satisfy section 9(2) of the Fair Administrative Action Act, which requires statutory review mechanisms to be exhausted before judicial review. Because no court is seized of the EACC's silence, section 30 of the CAJ Act is no bar. And the 30-day review window under section 14 of the ATI Act, running from the September 25 deemed refusal, closes on October 25 — so the filing is within time with days to spare.

The move also builds a record. If the CAJ acts, the EACC must either respond or be found in breach by a constitutional commission. If the CAJ itself stalls, COFEK will have exhausted every statutory avenue, strengthening a High Court petition for mandamus under Articles 22, 23, 35 and 47 — a right the federation expressly reserves "without further notice."

The larger test is institutional. The High Court declined to rule on the conflict question precisely because it trusted the EACC to do so. If the commission entrusted with that inquiry will not even confirm receipt of the complaint, the court's referral risks becoming a dead end — and the question of who ultimately owns and controls a contractor paid from a Sh15 billion public fund goes unanswered.

COFEK's protest closes with a reservation that the matters raised remain allegations for investigation, and that nothing in it prejudges the guilt or innocence of any person, including any director, shareholder or beneficial owner of the Nightigale entities, or any officer of the EACC.

The EACC had not publicly responded at the time of publication.