“Although Article 156 (4) designates the Attorney-General as the principal legal adviser to the Government, it does not authorise the Attorney General to usurp or trample on the constitutional role (of EACC),” the court said in ruling on a petition filed by Consumer Federation of Kenya (Cofek).

The dispute arose from a September 10, 2024 letter by the Communications Authority to the Office of the Attorney-General seeking a legal opinion on an alleged conflict of interest in the procurement and award of the Digital Superhighway Backbone and Metro framework contract to Nightingale (EA) Limited.

This followed concerns over the company’s links to then CA chairperson Mary Wambui Mungai and her daughter.

Solicitor-General Shadrack Mose, in an advisory dated October 1, 2024, concluded that no conflict of interest had arisen because Ms Wambui had resigned as a Nightingale director and shareholder and transferred her shares on December 5, 2022; had not participated in the procurement; and neither she nor her daughter was a director or shareholder when the contract was executed.

The court quashed this advisory and directed the petitioner to first pursue the matter before the EACC, opening a possible legal and investigative chapter in the controversy surrounding the government’s Digital Super Highway fibre-optic tenders.

The case concerned two ICT Authority tenders advertised in February 2023 for the Digital Super Highway—one for last-mile and public Wi-Fi connectivity and the other for backbone and metro connectivity.

The Sh15 billion project was financed through the Universal Service Fund, administered by the Communications Authority. The petition said the first phase would involve 2,500 kilometres of optical fibre and cost Sh5 billion.

The petition concerned the award of two contracts to Nightingale Enterprises Ltd for Sh14.8 million for last-mile and public Wi-Fi connectivity and Sh54.1 million for backbone and metro connectivity.

Cofek challenged the legality of the awards, alleging conflict of interest. It claimed that Nightingale was linked to the then Communications Authority chairperson through her daughter, Evelyn Nyambura Mungai.

Cofek alleged that ownership was shifted through the daughter and later to a business associate after the tender process.

However, Ms Wambui and the Communications Authority maintained that she had resigned and transferred her shares on December 5, 2022, and neither she nor her daughter held interests when the contracts were executed.

Cofek claimed that the ownership changes were intended to conceal the beneficial interest and create a conflict of interest in the procurement.

The lobby group sought declarations that the contracts were unlawful, order to repay money paid to linked entities, and a finding that Ms Wambui had violated the Constitution.

The court, instead, focused on whether the allegations had first been taken to the institution legally equipped to investigate them.

It held that the EACC, rather than the Attorney-General, was the proper body to examine the allegations, including the changes in Nightingale’s shareholding, the alleged use of proxies and the identity of the company’s beneficial owners.

“The resulting opinion is thus unconstitutional and of no legal effect,” the court said of the Attorney-General’s October 1, 2024 advisory.

Article 79 establishes EACC to enforce Chapter Six requirements, while Section 13(c) of the Ethics and Anti-Corruption Act gives it power to investigate on its own initiative or after a complaint.

The Attorney-General remains the Government’s principal legal adviser under Article 156, but that mandate did not allow the office to take over EACC’s work.

The judge rejected Cofek’s attempt to have the court determine the alleged conflict without an EACC investigation.

“This court is of the view that EACC is the appropriate forum to initiate the complaint for in-depth investigation,” he said, citing its investigative tools and expertise.

The court identified ownership changes, alleged proxy arrangements, beneficial ownership, and the financial trail after payments as matters EACC could examine.

“The petitioner remains at full liberty to petition the Ethics and Anti-Corruption Commission for formal investigation. Alternatively, the Commission may, on its own motion, decide to initiate such an investigation,” said the court.

It applied constitutional avoidance and declined to decide whether the procurement was actually affected by conflict of interest.

The ownership history formed the centre of the dispute. COFEK alleged that Nightingale changed its name and shareholding around the tender process, with Ms Wambui’s daughter, Evelyn Nyambura Mungai, holding 70 percent.

Cofek further alleged that Ruth Waithira Kinyanjui later became the holder of 90 percent and was acting as a proxy for Ms Wambui and her daughter.

The respondents denied wrongdoing and said ICT Authority alone handled procurement after Communications Authority transferred that responsibility under a formal arrangement.

They said Ms Wambui and her daughter were not directors or shareholders when the contract was executed, and Ms Wambui did not participate in procurement.

ICTA told the court it received 75 bids and recommended 18 firms. Nightingale was recommended under Lot Six at Sh14.7 million for one tender and Sh54 million for the backbone and metro tender.

Ms Wambui left the Communications Authority in August 2025 after President William Ruto revoked her appointment and replaced her with Charles Karondo, before she was appointed chairperson of the Athi Water Works Development Agency.