A fresh attempt by businessman Paul Wanderi Ndung’u to reopen a settled dispute involving Milestone Games and the betting industry regulator over the use of the name Sportpesa has failed.
The Court of Appeal rejected his bid to overturn a February 2024 consent order that marked Milestone Games’ case against the Betting Control and Licensing Board (BCLB) as withdrawn. The court ruled that it could not set aside an order that had never been formally presented before it.
A three-judge bench dismissed Ndung’u’s application, describing it as lacking merit and awarding costs to Milestone Games. The decision leaves intact the consent agreement that led to the withdrawal of Milestone’s appeal.
At the centre of the dispute was the control and use of the Sportpesa brand, initially associated with Pevans East Africa, where Mr Ndung’u was a shareholder before his fallout with the company in 2022 and takeover of the brand by Milestone Games.
The legal battle at the Court of Appeal originated from a regulatory dispute in 2020. In November of that year, Milestone Games petitioned the High Court for judicial review orders to quash two BCLB decisions.
The regulator had barred Milestone from using the Sportpesa trademark, associated domains, short codes, and paybill numbers, while also suspending its bookmaker’s license indefinitely. Milestone argued that these actions were illegal, violated due process, and infringed on its constitutional rights.
The High Court granted Milestone’s request and suspended the BCLB’s decisions. Subsequent contempt proceedings found BCLB officials guilty, though they were given time to purge the contempt.
In May 2022, Milestone and the regulator reached a consent agreement to settle the dispute. When presented for adoption, Ndung’u opposed it and sought to be joined to the case.
However, the High Court declined to approve the consent, stating it needed assurance that the agreement resulted from proper procedural resolution by the board.
Milestone then appealed the High Court’s decision and sought a stay on further proceedings. Ndung’u applied to join the appeal, claiming a 17 per cent stake in Pevans East Africa, a company linked to the Sportpesa brand. His application was dismissed in February 2023 after Milestone and Pevans argued that he had been expelled from the company.
The appeal was later withdrawn by consent on February 12, 2024. Undeterred, Ndung’u persisted, and in April 2025, the Court of Appeal revisited its earlier refusal to admit him, allowing his joinder due to allegations of fraud requiring examination.
However, the court noted that the appeal had already been settled and left it to Ndung’u to pursue his claims regarding property rights through other legal avenues.
His latest application, now dismissed, sought formal joinder and the annulment of what he claimed was a February 24, 2023, consent order. He argued that the appeal’s withdrawal was unlawful and lacked signatures from all parties. Milestone countered that Ndung’u was not a party to the appeal or consent and that no active proceedings remained for him to join.
The judges ruled that the joinder issue had already been resolved.
“The issue of joinder… was addressed and determined by this Court in the ruling of April 11, 2025, and the Court cannot be asked to revisit and determine an issue it has already determined,” they stated.
Regarding the consent order, the court stated it had thoroughly examined the record and found no such order dated February 24, 2023. The only valid consent was from February 12, 2024.
“We cannot set aside an order that has not been placed before the Court and whose terms we cannot tell. Parties are bound by their pleadings, and that unless they amend the pleadings, the Court cannot deal with an issue that is not before it,” the judges ruled.
They emphasized that consent orders are binding unless proven fraudulent or illegal, stating: “By its nature, a consent order, unless proved… to be tainted with fraud, illegality, or any of the grounds upon which a contract may be set aside, is sacrosanct.”
The court further stated that it “cannot casually set aside a consent order that has been adopted by the parties and is said to have been fully implemented by the parties there, unless it is absolutely sure of the consent order that is impugned”.
