High Court nullifies Attorney General’s opinion on which Communications Authority relied upon to pay its former Chairperson Mary Wambui Mungai

COFEK challenged the award of two Digital Super Highway tenders (ICTA/OT/11 and ICTA/OT/13 of 2022-2023) to Nightigale Enterprises/Nightigale (EA) Limited, alleging conflict of interest linked to the CAK Board Chairperson Mary Wambui Mungai (1st respondent) via her daughter’s shareholding, later transferred to an alleged proxy.

Reliefs sought: declarations of illegality, unconstitutionality, nullification of the contracts, repayment of Universal Service Fund monies, and costs.

Key findings;

a) Procurement transfer was lawful: The court accepted that procurement responsibility was validly transferred from CAK (2nd respondent) to ICTA (3rd respondent) via a Deed of Transfer under s.52 PPADA/Reg 39, so CAK and its Chairperson had no direct hand in the tender process.

b) Conflict-of-interest question not resolved on the merits: The court declined to determine whether an actual conflict of interest existed, invoking the doctrine of constitutional avoidance — holding this was a matter for the Ethics and Anti-Corruption Commission (EACC) to investigate first, not for the High Court at first instance.

c) Attorney General’s opinion quashed: Significantly, the court found the AG had unconstitutionally usurped EACC’s mandate by issuing an advisory opinion (1 Oct 2024) clearing the 1st respondent of conflict of interest. That opinion was declared unconstitutional, null and void, and quashed via certiorari.

c) No costs — treated as public interest litigation.

Practical outcome

COFEK did not win nullification of the tenders/contracts or recovery of USF funds — those reliefs were effectively declined pending EACC investigation.

The petitioner (and/or EACC on its own motion) remains free to lodge a formal complaint with EACC for investigation into the shareholding restructuring, proxy arrangements, and beneficial ownership.

Implications for COFEK

This is a partial/procedural win: the court didn’t validate the respondents’ conduct, but it also didn’t grant substantive relief — it essentially punted the core allegation to EACC.

The quashing of the AG’s advisory opinion is the most consequential holding — it establishes precedent that the AG cannot pre-empt EACC’s constitutional mandate on integrity/conflict-of-interest determinations, which could be useful in other pending COFEK matters where AG opinions have been used to shield public officials.

The logical next step per the judgment is for COFEK to put up a formal EACC complaint — the court has effectively signaled that’s the only route left open for now.

EACC’s constitutional petition jurisdiction argument succeeded for the 4th/5th respondents (constitutional avoidance)