Court faults AG for clearing Mary Wambui-linked fibre tender
Court says determining the conflict-of-interest question falls within the mandate of the EACC.
The High Court in Kenya has nullified a legal opinion that previously permitted the Communications Authority of Kenya (CA) to make payments related to a company connected to former chairperson Mary Wambui Mungai. Solicitor-General Shadrack Mose issued the opinion on October 1, 2024, but the court declared it unconstitutional, stating that the Attorney-General overstepped its jurisdiction by ruling on a conflict of interest that should have been handled by the Ethics and Anti-Corruption Commission (EACC).
The court ruled that the opinion was of no legal effect, but did not find the Digital Superhighway tenders illegal or that Wambui had committed any offenses. Instead, it stated that the EACC should investigate potential conflicts of interest, ownership changes, proxy arrangements, and fund movements. The case involved tenders for the Digital Superhighway project funded by the Universal Service Fund managed by the CA.
The Consumer Federation of Kenya had challenged the award to Nightigale Enterprises, claiming it was linked to Wambui, who was CA chairperson at the time. Wambui resigned from the CA and Nightigale shortly after being appointed, and her daughter at one point held an interest in the company before exiting. The CA and ICT Authority argued Wambui had divested before the tenders, and the procurement was independently conducted by the ICT Authority.
The Solicitor-General had previously determined no conflict of interest, provided the contract requirements were fulfilled. The High Court ruled that the Attorney-General could not assume the investigative role vested in the EACC.
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