The court heard that the Communications Authority (CA) and the Competition Authority of Kenya (CAK) had informed Telkom Kenya that they would only approve the merger once the transaction was cleared by EACC. According to the judge, it follows that to the extent that the respondent purported or attempted to recover public property or prohibit its sale through a letter, its decision is ultra vires. The judge said the decision can be said to be unlawful because it is tainted by all or either of the grounds of illegality, irrationality and procedural impropriety.
The EACC in a gazette notice in January said investigations established that the process of privatisation of Telkom Kenya was above board and that there was no evidence of impropriety or culpability of the public officials involved in the process. It, however, said it was awaiting a response from the Director of Public Prosecutions (DPP). Telkom had moved to court seeking to quash a letter by EACC on 26 February 2020 that sought a list of properties it had sold and recall or suspend any more sales pending conclusion of investigations it was conducting on the company. According to EACC, there were claims of misappropriation of the company’s assets before the planned merger.
The agency said with a 40 percent government stake in Telkom, EACC has the mandate to protect the public interest particularly in investigating corruption and economic crimes. The court further heard that EACC’s mandate is not limited to public bodies or officers but also extends to any person or organisation.
Telkom said the requirement it recall recent sales of property and suspend further sales pending the conclusion of the investigations will expose it to significant loss and damage including damages for breach of its obligations under sale agreements concluded with various third parties.
