1. The Petition dated 8 November 2024 challenges the constitutionality of Kenya’s current Public Private Partnership (PPP) legal framework, particularly the Public Private Partnerships Act, 2021 (PPPA) and aspects of the Public Procurement and Asset Disposal Act, 2015 (PPADA). The Petition is supported by the Affidavit of Emily Kinama, Litigation Manager at Katiba Institute, sworn on 7 November 2024, who deposes that recent PPPs, specifically the KETRACO electricity transmission project and the proposed JKIA concession, have been undertaken in a manner that violates constitutional principles of transparency, accountability, competitiveness, public finance oversight, and separation of powers.
2. The Petitioner’s factual foundation rests on the 2024 Budget Policy Statement (BPS), which reveals that the State intends to rely heavily on PPPs and Privately Initiated Proposals (PIPs) as a “strategic and sustainable” financing mechanism for major infrastructure. The Affidavit states that Kenya’s PPP Directorate has 31 projects in the pipeline, many at the procurement stage, including the KETRACO project valued at Kshs 95.68 billion and the JKIA concession proposal submitted in March 2024. These projects, according to the Petitioner, were initiated through PIPs, inherently limiting competitiveness and violating Article 227’s requirement for fair, equitable, transparent, and competitive procurement.
3. The Petitioner further asserts that both projects have been processed with secrecy and opacity, contrary to Articles 10 and 201 of the Constitution. The Affidavit cites multiple instances of withheld information, including refusal by KETRACO to disclose key contractual terms on 7 October 2024, failure by the Ministry of Energy to publish mandatory tariff details on 15 October 2024, and the hurried processing of the JKIA PIP despite the existence of at least three other proposals.
4. These facts, the Petitioner argues, demonstrate that the Kenyan legal framework is currently incapable of guaranteeing the constitutional imperatives on transparency, accountability and sustainable development (including intergenerational equity).
5. A central legal contention is that the PPPA unconstitutionally excludes Parliament from approving PPP concession agreements; instead it vests final approval authority in the PPP Committee (the 5th Interested Party). The Petition challenges sections 59, 60, 61, 62 and 72(1) as read with section 63, arguing that they violate Articles 94, 95, 96, 206, 220–223, and 228 by removing Parliament from its constitutional role in authorising public expenditure, overseeing public finance, and safeguarding the Consolidated Fund. The Petitioner contends that PPPs constitute long term public expenditure and contingent liabilities and therefore cannot be executed solely by the Executive without legislative ratification.
6. The Petition also challenges sections 44(5) and (6) of the PPPA, which grant contracting authorities' discretion to decide whether PIPs should undergo competitive tendering. The Petitioner argues that this discretion violates Article 227’s mandatory procurement principles and enables arbitrary, opaque, and potentially biased procurement processes. Additionally, section 4(3) of the PPPA and section 4(2)(e) of the PPADA are said to unconstitutionally oust the applicability of the PPADA to PPPs, thereby undermining the constitutional procurement framework. The Petitioner seeks declarations of unconstitutionality and, where appropriate, retroactive invalidation of the KETRACO and JKIA processes
7. The opposition to the two projects was widely covered in the media, culminating in the cancellation.
SUMMARY OF 1st RESPONDENT’S RESPONSE
8. The 1st Respondent contends that the Petition is baseless because the issues raised are moot, and the cited provisions of the Public Private Partnership Act, sections 44(5), 44(6), 59, 60, 61, 62, 63 and 72(1), are presumed constitutional. They argue that the Petitioner has not demonstrated that the purpose or effect of these provisions is unconstitutional, and further assert that a statute cannot be invalidated simply because it restricts the application of another statute. Accordingly, they ask the Court to dismiss the Petition with costs
SUMMARY OF 3RD RESPONDENT’S RESPONSE
9. The Attorney General's (3rd Respondent) Grounds of Opposition dated 26 March 2025 challenge the Petition on the basis that the impugned provisions of the Public Private Partnerships Act, 2021, specifically sections 59, 60, 61, 62, 63 and 72(1), are constitutionally sound and valid. The Attorney General argues that these provisions properly vest executive functions in the Executive, consistent with the Constitution, and that Article 227’s procurement framework is intended to guide policy formulation by both the Executive and Legislature, not to restrict their discretion. The Attorney General further contends that the Petition improperly seeks to override constitutionally allocated functions of both branches of government, including legislative discretion, by advancing what the Attorney General characterises as the Petitioner’s private views.
10. Additionally, the Attorney General asserts that the Petition is speculative, nonjusticiable, and without merit. He maintains that the Petitioner’s challenge does not disclose a concrete constitutional controversy but instead attempts to pre emptively interfere with lawful governmental processes. The AG therefore urges the Court to dismiss the Petition on the basis that it lacks legal foundation and improperly seeks to fetter constitutional organs in the exercise of their respective mandates
SUMMARY OF THE 5TH RESPONDENT’S RESPONSE
11. The 5th respondent opposes the Petition and relies on the Replying Affidavit sworn by Nicholas Bodo, Acting Managing Director and Chief Executive Officer of the Kenya Airports Authority. At the outset, he avers that prayers (d), (e) and (f) of the Petition are moot insofar as they relate to the Privately Initiated Proposal (PIP) submitted by Adani Airport Holdings Ltd for the JKIA concession, as it was lawfully canceled on 26th February 2025. He relies on the Supreme Court’s pronouncement in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR , which underscores the public interest in conserving scarce judicial time so that it may be committed only to deserving cases of dispute settlement.
12. On the constitutional challenge to the Public Private Partnerships Act, 2021 (PPPA), the 5th Respondent asserts that the Petition’s attack on sections 4(2)(e), 4(3), 44(5) & (6), 59, 60, 61, 62, 63 and 72(1) is speculative, misconceived, and unsupported by specific evidence. He argues that the PPP Act is constitutionally compliant, and that Parliament enacted it pursuant to Article 227(2), which empowers Parliament to legislate procurement frameworks. He emphasizes that the PPP Committee is not purely an executive body, as it includes representatives from diverse sectors, including the Council of Governors (section 6(1)(e)) and non public officers (section 6(1)(f)). He further notes that section 63 requires parliamentary ratification for PPP agreements involving natural resources, demonstrating that the Act preserves constitutional checks and balances.
13. The 5th Respondent relies on previous court decisions to support the constitutionality of procurement under the PPP Act. He cites Portside Freight Terminals Limited & 2 Others v Okoiti & 10 Others [2024] KECA 169 (KLR) , where the Court of Appeal held that procurement outside the PPADA is not automatically unconstitutional and that constitutionality is assessed under Article 227’s principles of fairness, equity, transparency, competitiveness, and cost effectiveness. He also cites I EBC v National Super Alliance (NASA) Kenya & 6 Others [2017] KECA 436 (KLR) , which held that direct procurement is constitutional if statutory safeguards are met and that public participation is not mandatory unless required by statute. Additional authorities include Pan African Transformers & Switch Gears Ltd & 2 Others v PPARB & 3 Others [2022] KECA 984 (KLR) , William Ole Ntimama & 2 Others v Governor, Narok County & 2 Others [2014] eKLR , and Revital Health (EPZ) Ltd v PPOA & 6 Others [2012] eKLR, all reinforcing that procurement constitutionality depends on adherence to Article 227 values rather than rigid procedural uniformity. It is argued therefore that the PPP Act is a constitutionally valid legislative framework.
14. On allegations of secrecy, opacity, and lack of public participation in the KETRACO and JKIA PPP processes, the 5th Respondent argues that the PPP Act embeds transparency and public participation at multiple stages. He cites section 22(1)(k) (requiring public participation), section 26(3) (mandating publication of an up to date national PPP project list), section 69 (requiring publication of project execution information), and section 35(2)(h) (requiring stakeholder engagement during project development). He contends that any failures in disclosure or participation would be implementation issues, not defects in the statutory framework, and therefore cannot justify invalidating the Act.
15. On the Petition’s claim that Privately Initiated Proposals (PIPs) undermine competitiveness and violate Article 227, the 5th Respondent argues that the PPP Act operationalises Article 227 through a detailed procurement regime. He highlights section 3(c) (object of giving effect to Article 227), and Part V (sections 37–57), which outlines procurement methods including competitive bidding, direct procurement, and PIPs. He explains that PIPs undergo rigorous vetting, including feasibility studies, due diligence, value for money tests, and approval by both the PPP Committee and the Attorney General. He further notes that section 44(5) allows restricted or open tendering where appropriate, and that section 29 requires private proponents to bear project development costs, discouraging frivolous or politically motivated proposals.
16. On allegations of state favoritism toward the Adani Group, the 5th Respondent argues that the PPP Act contains structural safeguards against bias. He cites section 44, which permits direct negotiation only where a proposal is unique or offers public interest benefits; section 28(1), which requires government support measures to comply with public finance management law; and section 62, which empowers contracting authorities to cancel tender processes in the public interest without compensating bidders. He argues that any concerns about favoritism should be addressed through project specific litigation under Articles 22 and 258, not through invalidation of the entire PPP framework.
17. On the Petition’s concerns about public finance risks and intergenerational equity, the 5th Respondent argues that the PPP Act contains robust safeguards for fiscal responsibility. He cites section 2 (definition of affordability), section 36 (controls on contingent liabilities), sections 32–33 (mandatory feasibility studies), and section 63 (parliamentary approval for natural resource related projects). He emphasises that PPPs are long term, complex arrangements requiring specialised regulation distinct from the PPADA, and that the Act provides mechanisms for suspension, modification, or cancellation of negotiations under sections 57–60. He argues that any harmful PPP can be challenged individually, but isolated concerns cannot justify invalidating the entire statutory framework.
18. The 5th Respondent also provides comparative justification for PPPs by referencing international practice. He explains that PPPs are globally recognised as specialised, long-term infrastructure delivery mechanisms distinct from routine procurement. Jurisdictions such as the United Kingdom, India, South Africa, Brazil, and Australia operate PPP regimes separate from ordinary procurement laws, with dedicated legislation and specialised PPP units, mirroring Kenya’s PPP Directorate and PPP Committee. He notes that major airports such as London Heathrow (UK), Delhi International Airport (India), Johannesburg’s OR Tambo (South Africa), São Paulo–Guarulhos (Brazil), and Sydney Airport (Australia) have been constructed, expanded, or modernised under PPP or concession arrangements. These examples, he argues, demonstrate that PPPs are a globally accepted model for capital intensive airport infrastructure, and Kenya’s PPP Act aligns with international best practice by providing a tailored framework for complex projects requiring private financing, risk allocation, and long term operational expertise.
19. Finally, the 5th Respondent rejects the Petition’s request for retroactive declarations of unconstitutionality and structural interdicts. He argues that retroactive invalidation violates the doctrine of presumption of constitutionality of statutes and would destabilise ongoing PPP projects undertaken under a valid legal framework. He concludes that the Petition is speculative, academic, and legally untenable, and should be dismissed
SUMMARY OF THE RESPONSE OF THE 4TH RESPONDENT AND 5TH INTERESTED PARTY
20. The Replying Affidavit of the 4th Respondent and the 5th Interested Party is sworn by Dr. Chris Kiptoo, Principal Secretary, National Treasury and Chairperson of the PPP Committee. He states that he is duly authorised to depose to the affidavit and challenges the allegations concerning the constitutionality of the Public Private Partnerships Act, 2021 (PPPA) and the Public Procurement and Asset Disposal Act, 2015 (PPADA), contending that they arise from a misunderstanding of the constitutional, policy and fiscal framework within which the legislation was enacted.
21. The Respondents contend that the PPPA was deliberately enacted to attract private capital, expertise, innovation and efficiency into the delivery of public infrastructure and services, particularly in circumstances where Government's fiscal limitations would otherwise constrain such development. The legislation was enacted to address the identified gaps in the past namely, infrastructure projects suffered from the absence of a clear regulatory framework, prolonged preparation periods, inadequate affordability analysis, and procurement uncertainty. The PPPA was therefore intended to address Kenya's fiscal constraints, facilitate the transfer of significant project risks to the private sector, secure value for money and leverage private capital towards the development of public infrastructure.
22. The Respondents further rely on various Government policy documents, including the 2011 PPP Policy Statement, the 2020 Consultation White Paper, the Medium-Term Plan III, the Budget Policy Statement 2021 and the National Assembly Report on the PPP Bill, to demonstrate that the PPP framework forms part of an established national development policy. They contend that Kenya's limited fiscal space necessitated greater reliance on private-sector investment and that the Government had expressly provided for potential contingent liabilities arising from PPP projects within its fiscal planning framework. The National Assembly also recognised that expenditure arising from the Bill would be provided for through annual estimates approved by Parliament and that adequate public participation had been undertaken.
23. The Respondents maintain that the PPP framework is consistent with the constitutional requirements governing public procurement, public finance and service delivery. They rely on Article 227 of the Constitution, submitting that the PPPA establishes a regulated procurement process that is fair, equitable, transparent and competitive, while Article 201 is given effect through fiscal safeguards intended to ensure sustainable and transparent financial obligations. The establishment of the PPP Committee under section 6 and the PPP Directorate under section 15 provides specialised administrative oversight, while sections 73 and 88 impose reporting obligations to Parliament. In their view, these mechanisms complement rather than replace the oversight functions of the National Assembly and Senate and ensure transparency, accountability and parliamentary supervision.
24. The Respondents further argue that PPPs are necessary in light of Kenya's significant infrastructure financing requirements and limited public resources. The PPP framework therefore enables the Government to mobilise private capital and undertake urgent and high-priority projects without waiting for limited Exchequer allocations. They contend that failure to utilise PPPs in these circumstances would result in essential projects being indefinitely delayed or abandoned, thereby hindering national development and limiting public access to necessary infrastructure and services.
25. The Respondents reject the allegation that the PPPA bypasses Parliament or establishes an unconstitutional procurement regime. They contend that the PPPA and PPADA are complementary statutes operating within a unified constitutional framework aimed at promoting efficiency, integrity and public value in the use of public resources. They further submit that the Petitioner has failed to identify with specificity the provisions alleged to violate the Constitution and has instead advanced broad and unsupported assertions. The Respondents maintain that legislation enjoys a presumption of constitutionality, and that, where possible, the Court should adopt an interpretation that preserves legislation enacted by Parliament in the public interest. They also defend privately initiated proposals as a procurement method expressly provided for under the PPPA.
26. Finally, the Respondents deny that PPP arrangements create unsustainable intergenerational repayment burdens, maintaining that such arrangements are structured around value for money, affordability, optimal risk allocation and long-term fiscal sustainability. They contend that PPP obligations are subjected to appraisal, approval and affordability thresholds, and that private-sector returns depend upon performance and service delivery rather than guaranteed public indebtedness.
27. They maintain that the PPPA contains safeguards relating to fiscal discipline, public participation, transparency and accountability and remains subject to judicial, statutory and parliamentary oversight. Conversely, suspension of the Act and PPP projects would, in their view, disrupt critical infrastructure development, undermine investor confidence, expose the State to contractual and financial consequences and delay essential public services. They therefore urge the Court to dismiss the Petition and application with costs.
SUMMARY OF 2ND INTERESTED PARTY’S RESPONSE
28. The 2nd Interested Party opposes the Petition, and an affidavit is sworn by Florence Mitei, Company Secretary and General Manager Legal Services, on 27th April 2026. The 2nd Interested Party explains that in consonance with the National Energy and Petroleum Policy of 2014, it embraced the Government’s strategic move to broaden financing avenues through Public Private Partnerships (PPPs). The Policy enables the private sector participation in financing, construction, development, operation and maintenance of infrastructure and development projects.
29. Within this statutory and policy framework, it received a privately initiated proposal from Adani Energy Solutions Limited for the development of the 400 kV Gilgil-Thika-Malla-Konza and 220 kV D/C Rongai-Keringet-Chemosit transmission lines, associated substation works, and the 132/33 kV Thurdibuoro substation across Kenya.
30. That the KETRACO electricity transmission PPP was undertaken pursuant to the Public Private Partnerships Act, 2021, and that all statutory steps were followed. In response to the claim that the Act is unconstitutional because Parliament abrogates its supervisory role, the 2nd interested party avers that Parliament maintains a supervisory role through the annual reports submitted to Parliament and that the Act is deliberately structured to avoid the bureaucratic layers that hampered the now-repealed predecessor Act, the 2013 PPP Act.
31. The 2nd interested party emphasises that PPP projects are not subject to individual parliamentary approval under the Act; however, to the extent that they involve public funds, guarantees or contingent liabilities, they remain subject to parliamentary oversight within the broader public finance framework.
32. Regarding the allegation that Sections 44(5)(6) violate Article 227 of the Constitution, the 2nd Interested Party clarifies that the proposal originates with the private party, without solicitation from the contracting party. Further, Section 40(3)(j) requires the private party to justify why the project is unsuitable for procurement through open and competitive processes, and the contracting authority, with oversight from the PPP Directorate and the PPP Committee, retains discretion to subject such a proposal to competitive bidding where the justification provided is found to be insufficient.
33. The 2nd interested party avers that, contrary to the Petitioner’s assertions, Section 4(2) of the PPP Act ousts the PPADA Act’s jurisdiction for wholly privately financed PPPs, whereas Section 4(3) of the PPP Act provides for the application of the PPADA Act where there is counterpart funding, including public funds.
34. The 2nd Interested Party therefore contends that the PPP Act is constitutional and rejects the Petitioner’s claim that the project was shrouded in secrecy or unlawfully awarded. The 2nd Interested Party maintains that the Petition’s allegations are speculative and unsupported by evidence. The right-to-match provisions within the Act ensure transparency and value for money, promote competition, and prevent discrimination.
35. The Petition was canvassed via written submissions, with parties highlighting their respective submissions on 11th June 2026
SUMMARY OF THE PETITIONER’S SUBMISSIONS
36. The Petitioner submits that the Court should adopt a holistic approach to constitutional interpretation, reading the Constitution as an integrated whole and interpreting individual provisions in their historical, contextual and institutional setting. Reliance is placed on In the Matter of the Kenya National Commission on Human Rights [2014] eKLR , where the Supreme Court held that constitutional provisions should be read alongside one another to achieve a rational and coherent interpretation. The Petitioner argues that Articles 1, 2, 10, 95, 96, 201, 206(2), 220, 221 and 223 must therefore be read together to reinforce Parliament's authority over public finance, expenditure and executive accountability.
37. The Petitioner contends that Parliament has exclusive constitutional authority to authorise public expenditure, revenue raising and borrowing. Articles 94, 95(4), 96, 206(2), 220, 221 and 223 establish a constitutional framework under which significant public financial commitments must receive parliamentary approval and oversight. Sections 50(3) and 58 of the Public Finance Management Act are relied upon to reinforce this position. In Council of Governors & 47 others v Attorney General & 3 others; Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR , the Supreme Court affirmed that public funds must be supported by lawful appropriations. The Petitioner therefore argues that PPPs involving long-term public expenditure, contingent liabilities or government guarantees cannot constitutionally be approved exclusively by the Executive.
38. The Petitioner challenges sections 59, 60, 61, 62 and 72(1), read with section 63 of the Public Private Partnerships Act, 2021, on the ground that they vest final approval of PPP project agreements, amendments and cancellations in the PPP Committee rather than Parliament. It is argued that section 63 only provides for parliamentary ratification of natural-resource-related PPPs, leaving major projects such as JKIA and KETRACO outside parliamentary scrutiny. The Petitioner relies on Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR) and In the Matter of the Speaker of the Senate & Another [2013] to submit that Parliament cannot constitutionally surrender or legislate away its core functions.
39. The Petitioner argues that PPPs are not merely procurement arrangements but mechanisms through which government assumes long-term financial commitments. They may involve annuity or availability payments, user charges, guarantees, indemnities, government support measures and contingent liabilities. The KETRACO project, for instance, involves a 30-year arrangement estimated at Kshs 95.68 billion, while PPPs generally may bind successive governments and future generations. Consequently, such commitments must be subjected to parliamentary pre-authorisation and oversight because they may affect future public budgets and potentially crowd out expenditure on essential constitutional functions and services.
40. The Petitioner challenges sections 40(3)(j), 44(5) and 44(6) of the PPPA for permitting contracting authorities to decide whether a Privately Initiated Proposal should undergo competitive procurement. Article 227 requires public procurement to be fair, equitable, transparent, competitive and cost-effective. The Petitioner submits that these constitutional standards are mandatory and cannot be displaced by open-ended executive discretion based on concepts such as “market interest” or “public interest.” Reliance is placed on the constitutional values of transparency and accountability under Article 10.
41. The Petitioner further contends that sections 40(3)(j), 44(5) and 44(6) lack objective standards and effective oversight mechanisms governing the decision whether to subject a PIP to open competitive procurement. The absence of a requirement to publish reasons is said to facilitate preferential treatment, inflated project costs and potentially corrupt arrangements between public officials and private proponents. The JKIA project is cited as an illustration, where the Petitioner alleges that although at least three PIPs were received, the proposal associated with Adani Airports Holdings Ltd was processed without transparent comparative evaluation. Similar concerns are raised regarding the KETRACO project.
42. The Petitioner challenges section 4(3) of the PPPA and section 4(2)(e) of the Public Procurement and Asset Disposal Act, 2015, to the extent that they exclude the application of PPADA to certain PPPs, particularly privately funded projects. It is submitted that PPADA is the principal statute giving effect to Article 227 and that excluding its procurement safeguards cannot result in exclusion of the constitutional standards themselves. Article 227 applies uniformly to public procurement irrespective of the funding model. The Petitioner therefore argues that private financing does not constitute a constitutional exception to the requirements of fairness, transparency, competitiveness and value for money.
43. The Petitioner submits that if the impugned provisions are declared unconstitutional, the declaration should operate retrospectively, particularly in relation to the JKIA and KETRACO projects. Article 2(4) provides that laws inconsistent with the Constitution are void to the extent of the inconsistency. The Petitioner relies on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , which recognised that retrospective application may be appropriate where justice, legal certainty or public policy so require, and S uleiman Said Shahbal v IEBC & 3 others [2014] eKLR . It also cites Nation Media Group Ltd v Onesmus Kilonzo [2015] eKLR for the proposition that, absent limitation by the Court, invalidity operates from the date of enactment.
44. The Petitioner argues that unconstitutional PPP arrangements should not be protected merely because contracts have already been executed. PPPs may create obligations lasting 20–30 years, including future payments, user charges, guarantees, indemnities and concessions over public assets. Reliance is placed on S ias Moise v Transitional Local Council of Greater Germiston (2001) ZACC 21, Minister of Health v Treatment Action Campaign (No. 2) [2002] ZACC 15, Law Society of Kenya v Attorney General & Another [2013] eKLR and Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR. The submission is that contractual expectations cannot override constitutional supremacy and that the public interest in preventing long-term unconstitutional burdens outweighs private expectations arising from an unconstitutional process.
45. Finally, the Petitioner seeks a structural interdict on the basis that declaratory relief alone would be inadequate to address the alleged systemic violations surrounding the JKIA and KETRACO projects. The Petitioner alleges secrecy, lack of parliamentary ratification, inadequate public participation, non-disclosure of critical documents and executive overreach. In Trusted Society of Human Rights Alliance v AG & 2 others [2012] eKLR and Minister of Health v Treatment Action Campaign (No. 2) [2002] ZACC 15 , structural remedies are said to be appropriate where declarations alone cannot cure persistent institutional violations. The Petitioner also relies on Coalition for Reform and Democracy (CORD) v Attorney-General & another [2015] eKLR for the proposition that courts may fashion effective remedies suited to complex constitutional violations. The proposed orders include disclosure of the JKIA and KETRACO agreements, review of the PPPA and PPADA, reporting to the Court, and continued judicial supervision.
SUMMARY OF 3RD RESPONDENT SUBMISSIONS
46. The Attorney-General opposes the
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2. The Petitioner’s factual foundation rests on the 2024 Budget Policy Statement (BPS), which reveals that the State intends to rely heavily on PPPs and Privately Initiated Proposals (PIPs) as a “strategic and sustainable” financing mechanism for major infrastructure. The Affidavit states that Kenya’s PPP Directorate has 31 projects in the pipeline, many at the procurement stage, including the KETRACO project valued at Kshs 95.68 billion and the JKIA concession proposal submitted in March 2024. These projects, according to the Petitioner, were initiated through PIPs, inherently limiting competitiveness and violating Article 227’s requirement for fair, equitable, transparent, and competitive procurement.
3. The Petitioner further asserts that both projects have been processed with secrecy and opacity, contrary to Articles 10 and 201 of the Constitution. The Affidavit cites multiple instances of withheld information, including refusal by KETRACO to disclose key contractual terms on 7 October 2024, failure by the Ministry of Energy to publish mandatory tariff details on 15 October 2024, and the hurried processing of the JKIA PIP despite the existence of at least three other proposals.
4. These facts, the Petitioner argues, demonstrate that the Kenyan legal framework is currently incapable of guaranteeing the constitutional imperatives on transparency, accountability and sustainable development (including intergenerational equity).
5. A central legal contention is that the PPPA unconstitutionally excludes Parliament from approving PPP concession agreements; instead it vests final approval authority in the PPP Committee (the 5th Interested Party). The Petition challenges sections 59, 60, 61, 62 and 72(1) as read with section 63, arguing that they violate Articles 94, 95, 96, 206, 220–223, and 228 by removing Parliament from its constitutional role in authorising public expenditure, overseeing public finance, and safeguarding the Consolidated Fund. The Petitioner contends that PPPs constitute long term public expenditure and contingent liabilities and therefore cannot be executed solely by the Executive without legislative ratification.
6. The Petition also challenges sections 44(5) and (6) of the PPPA, which grant contracting authorities' discretion to decide whether PIPs should undergo competitive tendering. The Petitioner argues that this discretion violates Article 227’s mandatory procurement principles and enables arbitrary, opaque, and potentially biased procurement processes. Additionally, section 4(3) of the PPPA and section 4(2)(e) of the PPADA are said to unconstitutionally oust the applicability of the PPADA to PPPs, thereby undermining the constitutional procurement framework. The Petitioner seeks declarations of unconstitutionality and, where appropriate, retroactive invalidation of the KETRACO and JKIA processes
7. The opposition to the two projects was widely covered in the media, culminating in the cancellation.
SUMMARY OF 1st RESPONDENT’S RESPONSE
8. The 1st Respondent contends that the Petition is baseless because the issues raised are moot, and the cited provisions of the Public Private Partnership Act, sections 44(5), 44(6), 59, 60, 61, 62, 63 and 72(1), are presumed constitutional. They argue that the Petitioner has not demonstrated that the purpose or effect of these provisions is unconstitutional, and further assert that a statute cannot be invalidated simply because it restricts the application of another statute. Accordingly, they ask the Court to dismiss the Petition with costs
SUMMARY OF 3RD RESPONDENT’S RESPONSE
9. The Attorney General's (3rd Respondent) Grounds of Opposition dated 26 March 2025 challenge the Petition on the basis that the impugned provisions of the Public Private Partnerships Act, 2021, specifically sections 59, 60, 61, 62, 63 and 72(1), are constitutionally sound and valid. The Attorney General argues that these provisions properly vest executive functions in the Executive, consistent with the Constitution, and that Article 227’s procurement framework is intended to guide policy formulation by both the Executive and Legislature, not to restrict their discretion. The Attorney General further contends that the Petition improperly seeks to override constitutionally allocated functions of both branches of government, including legislative discretion, by advancing what the Attorney General characterises as the Petitioner’s private views.
10. Additionally, the Attorney General asserts that the Petition is speculative, nonjusticiable, and without merit. He maintains that the Petitioner’s challenge does not disclose a concrete constitutional controversy but instead attempts to pre emptively interfere with lawful governmental processes. The AG therefore urges the Court to dismiss the Petition on the basis that it lacks legal foundation and improperly seeks to fetter constitutional organs in the exercise of their respective mandates
SUMMARY OF THE 5TH RESPONDENT’S RESPONSE
11. The 5th respondent opposes the Petition and relies on the Replying Affidavit sworn by Nicholas Bodo, Acting Managing Director and Chief Executive Officer of the Kenya Airports Authority. At the outset, he avers that prayers (d), (e) and (f) of the Petition are moot insofar as they relate to the Privately Initiated Proposal (PIP) submitted by Adani Airport Holdings Ltd for the JKIA concession, as it was lawfully canceled on 26th February 2025. He relies on the Supreme Court’s pronouncement in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR , which underscores the public interest in conserving scarce judicial time so that it may be committed only to deserving cases of dispute settlement.
12. On the constitutional challenge to the Public Private Partnerships Act, 2021 (PPPA), the 5th Respondent asserts that the Petition’s attack on sections 4(2)(e), 4(3), 44(5) & (6), 59, 60, 61, 62, 63 and 72(1) is speculative, misconceived, and unsupported by specific evidence. He argues that the PPP Act is constitutionally compliant, and that Parliament enacted it pursuant to Article 227(2), which empowers Parliament to legislate procurement frameworks. He emphasizes that the PPP Committee is not purely an executive body, as it includes representatives from diverse sectors, including the Council of Governors (section 6(1)(e)) and non public officers (section 6(1)(f)). He further notes that section 63 requires parliamentary ratification for PPP agreements involving natural resources, demonstrating that the Act preserves constitutional checks and balances.
13. The 5th Respondent relies on previous court decisions to support the constitutionality of procurement under the PPP Act. He cites Portside Freight Terminals Limited & 2 Others v Okoiti & 10 Others [2024] KECA 169 (KLR) , where the Court of Appeal held that procurement outside the PPADA is not automatically unconstitutional and that constitutionality is assessed under Article 227’s principles of fairness, equity, transparency, competitiveness, and cost effectiveness. He also cites I EBC v National Super Alliance (NASA) Kenya & 6 Others [2017] KECA 436 (KLR) , which held that direct procurement is constitutional if statutory safeguards are met and that public participation is not mandatory unless required by statute. Additional authorities include Pan African Transformers & Switch Gears Ltd & 2 Others v PPARB & 3 Others [2022] KECA 984 (KLR) , William Ole Ntimama & 2 Others v Governor, Narok County & 2 Others [2014] eKLR , and Revital Health (EPZ) Ltd v PPOA & 6 Others [2012] eKLR, all reinforcing that procurement constitutionality depends on adherence to Article 227 values rather than rigid procedural uniformity. It is argued therefore that the PPP Act is a constitutionally valid legislative framework.
14. On allegations of secrecy, opacity, and lack of public participation in the KETRACO and JKIA PPP processes, the 5th Respondent argues that the PPP Act embeds transparency and public participation at multiple stages. He cites section 22(1)(k) (requiring public participation), section 26(3) (mandating publication of an up to date national PPP project list), section 69 (requiring publication of project execution information), and section 35(2)(h) (requiring stakeholder engagement during project development). He contends that any failures in disclosure or participation would be implementation issues, not defects in the statutory framework, and therefore cannot justify invalidating the Act.
15. On the Petition’s claim that Privately Initiated Proposals (PIPs) undermine competitiveness and violate Article 227, the 5th Respondent argues that the PPP Act operationalises Article 227 through a detailed procurement regime. He highlights section 3(c) (object of giving effect to Article 227), and Part V (sections 37–57), which outlines procurement methods including competitive bidding, direct procurement, and PIPs. He explains that PIPs undergo rigorous vetting, including feasibility studies, due diligence, value for money tests, and approval by both the PPP Committee and the Attorney General. He further notes that section 44(5) allows restricted or open tendering where appropriate, and that section 29 requires private proponents to bear project development costs, discouraging frivolous or politically motivated proposals.
16. On allegations of state favoritism toward the Adani Group, the 5th Respondent argues that the PPP Act contains structural safeguards against bias. He cites section 44, which permits direct negotiation only where a proposal is unique or offers public interest benefits; section 28(1), which requires government support measures to comply with public finance management law; and section 62, which empowers contracting authorities to cancel tender processes in the public interest without compensating bidders. He argues that any concerns about favoritism should be addressed through project specific litigation under Articles 22 and 258, not through invalidation of the entire PPP framework.
17. On the Petition’s concerns about public finance risks and intergenerational equity, the 5th Respondent argues that the PPP Act contains robust safeguards for fiscal responsibility. He cites section 2 (definition of affordability), section 36 (controls on contingent liabilities), sections 32–33 (mandatory feasibility studies), and section 63 (parliamentary approval for natural resource related projects). He emphasises that PPPs are long term, complex arrangements requiring specialised regulation distinct from the PPADA, and that the Act provides mechanisms for suspension, modification, or cancellation of negotiations under sections 57–60. He argues that any harmful PPP can be challenged individually, but isolated concerns cannot justify invalidating the entire statutory framework.
18. The 5th Respondent also provides comparative justification for PPPs by referencing international practice. He explains that PPPs are globally recognised as specialised, long-term infrastructure delivery mechanisms distinct from routine procurement. Jurisdictions such as the United Kingdom, India, South Africa, Brazil, and Australia operate PPP regimes separate from ordinary procurement laws, with dedicated legislation and specialised PPP units, mirroring Kenya’s PPP Directorate and PPP Committee. He notes that major airports such as London Heathrow (UK), Delhi International Airport (India), Johannesburg’s OR Tambo (South Africa), São Paulo–Guarulhos (Brazil), and Sydney Airport (Australia) have been constructed, expanded, or modernised under PPP or concession arrangements. These examples, he argues, demonstrate that PPPs are a globally accepted model for capital intensive airport infrastructure, and Kenya’s PPP Act aligns with international best practice by providing a tailored framework for complex projects requiring private financing, risk allocation, and long term operational expertise.
19. Finally, the 5th Respondent rejects the Petition’s request for retroactive declarations of unconstitutionality and structural interdicts. He argues that retroactive invalidation violates the doctrine of presumption of constitutionality of statutes and would destabilise ongoing PPP projects undertaken under a valid legal framework. He concludes that the Petition is speculative, academic, and legally untenable, and should be dismissed
SUMMARY OF THE RESPONSE OF THE 4TH RESPONDENT AND 5TH INTERESTED PARTY
20. The Replying Affidavit of the 4th Respondent and the 5th Interested Party is sworn by Dr. Chris Kiptoo, Principal Secretary, National Treasury and Chairperson of the PPP Committee. He states that he is duly authorised to depose to the affidavit and challenges the allegations concerning the constitutionality of the Public Private Partnerships Act, 2021 (PPPA) and the Public Procurement and Asset Disposal Act, 2015 (PPADA), contending that they arise from a misunderstanding of the constitutional, policy and fiscal framework within which the legislation was enacted.
21. The Respondents contend that the PPPA was deliberately enacted to attract private capital, expertise, innovation and efficiency into the delivery of public infrastructure and services, particularly in circumstances where Government's fiscal limitations would otherwise constrain such development. The legislation was enacted to address the identified gaps in the past namely, infrastructure projects suffered from the absence of a clear regulatory framework, prolonged preparation periods, inadequate affordability analysis, and procurement uncertainty. The PPPA was therefore intended to address Kenya's fiscal constraints, facilitate the transfer of significant project risks to the private sector, secure value for money and leverage private capital towards the development of public infrastructure.
22. The Respondents further rely on various Government policy documents, including the 2011 PPP Policy Statement, the 2020 Consultation White Paper, the Medium-Term Plan III, the Budget Policy Statement 2021 and the National Assembly Report on the PPP Bill, to demonstrate that the PPP framework forms part of an established national development policy. They contend that Kenya's limited fiscal space necessitated greater reliance on private-sector investment and that the Government had expressly provided for potential contingent liabilities arising from PPP projects within its fiscal planning framework. The National Assembly also recognised that expenditure arising from the Bill would be provided for through annual estimates approved by Parliament and that adequate public participation had been undertaken.
23. The Respondents maintain that the PPP framework is consistent with the constitutional requirements governing public procurement, public finance and service delivery. They rely on Article 227 of the Constitution, submitting that the PPPA establishes a regulated procurement process that is fair, equitable, transparent and competitive, while Article 201 is given effect through fiscal safeguards intended to ensure sustainable and transparent financial obligations. The establishment of the PPP Committee under section 6 and the PPP Directorate under section 15 provides specialised administrative oversight, while sections 73 and 88 impose reporting obligations to Parliament. In their view, these mechanisms complement rather than replace the oversight functions of the National Assembly and Senate and ensure transparency, accountability and parliamentary supervision.
24. The Respondents further argue that PPPs are necessary in light of Kenya's significant infrastructure financing requirements and limited public resources. The PPP framework therefore enables the Government to mobilise private capital and undertake urgent and high-priority projects without waiting for limited Exchequer allocations. They contend that failure to utilise PPPs in these circumstances would result in essential projects being indefinitely delayed or abandoned, thereby hindering national development and limiting public access to necessary infrastructure and services.
25. The Respondents reject the allegation that the PPPA bypasses Parliament or establishes an unconstitutional procurement regime. They contend that the PPPA and PPADA are complementary statutes operating within a unified constitutional framework aimed at promoting efficiency, integrity and public value in the use of public resources. They further submit that the Petitioner has failed to identify with specificity the provisions alleged to violate the Constitution and has instead advanced broad and unsupported assertions. The Respondents maintain that legislation enjoys a presumption of constitutionality, and that, where possible, the Court should adopt an interpretation that preserves legislation enacted by Parliament in the public interest. They also defend privately initiated proposals as a procurement method expressly provided for under the PPPA.
26. Finally, the Respondents deny that PPP arrangements create unsustainable intergenerational repayment burdens, maintaining that such arrangements are structured around value for money, affordability, optimal risk allocation and long-term fiscal sustainability. They contend that PPP obligations are subjected to appraisal, approval and affordability thresholds, and that private-sector returns depend upon performance and service delivery rather than guaranteed public indebtedness.
27. They maintain that the PPPA contains safeguards relating to fiscal discipline, public participation, transparency and accountability and remains subject to judicial, statutory and parliamentary oversight. Conversely, suspension of the Act and PPP projects would, in their view, disrupt critical infrastructure development, undermine investor confidence, expose the State to contractual and financial consequences and delay essential public services. They therefore urge the Court to dismiss the Petition and application with costs.
SUMMARY OF 2ND INTERESTED PARTY’S RESPONSE
28. The 2nd Interested Party opposes the Petition, and an affidavit is sworn by Florence Mitei, Company Secretary and General Manager Legal Services, on 27th April 2026. The 2nd Interested Party explains that in consonance with the National Energy and Petroleum Policy of 2014, it embraced the Government’s strategic move to broaden financing avenues through Public Private Partnerships (PPPs). The Policy enables the private sector participation in financing, construction, development, operation and maintenance of infrastructure and development projects.
29. Within this statutory and policy framework, it received a privately initiated proposal from Adani Energy Solutions Limited for the development of the 400 kV Gilgil-Thika-Malla-Konza and 220 kV D/C Rongai-Keringet-Chemosit transmission lines, associated substation works, and the 132/33 kV Thurdibuoro substation across Kenya.
30. That the KETRACO electricity transmission PPP was undertaken pursuant to the Public Private Partnerships Act, 2021, and that all statutory steps were followed. In response to the claim that the Act is unconstitutional because Parliament abrogates its supervisory role, the 2nd interested party avers that Parliament maintains a supervisory role through the annual reports submitted to Parliament and that the Act is deliberately structured to avoid the bureaucratic layers that hampered the now-repealed predecessor Act, the 2013 PPP Act.
31. The 2nd interested party emphasises that PPP projects are not subject to individual parliamentary approval under the Act; however, to the extent that they involve public funds, guarantees or contingent liabilities, they remain subject to parliamentary oversight within the broader public finance framework.
32. Regarding the allegation that Sections 44(5)(6) violate Article 227 of the Constitution, the 2nd Interested Party clarifies that the proposal originates with the private party, without solicitation from the contracting party. Further, Section 40(3)(j) requires the private party to justify why the project is unsuitable for procurement through open and competitive processes, and the contracting authority, with oversight from the PPP Directorate and the PPP Committee, retains discretion to subject such a proposal to competitive bidding where the justification provided is found to be insufficient.
33. The 2nd interested party avers that, contrary to the Petitioner’s assertions, Section 4(2) of the PPP Act ousts the PPADA Act’s jurisdiction for wholly privately financed PPPs, whereas Section 4(3) of the PPP Act provides for the application of the PPADA Act where there is counterpart funding, including public funds.
34. The 2nd Interested Party therefore contends that the PPP Act is constitutional and rejects the Petitioner’s claim that the project was shrouded in secrecy or unlawfully awarded. The 2nd Interested Party maintains that the Petition’s allegations are speculative and unsupported by evidence. The right-to-match provisions within the Act ensure transparency and value for money, promote competition, and prevent discrimination.
35. The Petition was canvassed via written submissions, with parties highlighting their respective submissions on 11th June 2026
SUMMARY OF THE PETITIONER’S SUBMISSIONS
36. The Petitioner submits that the Court should adopt a holistic approach to constitutional interpretation, reading the Constitution as an integrated whole and interpreting individual provisions in their historical, contextual and institutional setting. Reliance is placed on In the Matter of the Kenya National Commission on Human Rights [2014] eKLR , where the Supreme Court held that constitutional provisions should be read alongside one another to achieve a rational and coherent interpretation. The Petitioner argues that Articles 1, 2, 10, 95, 96, 201, 206(2), 220, 221 and 223 must therefore be read together to reinforce Parliament's authority over public finance, expenditure and executive accountability.
37. The Petitioner contends that Parliament has exclusive constitutional authority to authorise public expenditure, revenue raising and borrowing. Articles 94, 95(4), 96, 206(2), 220, 221 and 223 establish a constitutional framework under which significant public financial commitments must receive parliamentary approval and oversight. Sections 50(3) and 58 of the Public Finance Management Act are relied upon to reinforce this position. In Council of Governors & 47 others v Attorney General & 3 others; Katiba Institute & 2 others (Amicus Curiae) [2020] eKLR , the Supreme Court affirmed that public funds must be supported by lawful appropriations. The Petitioner therefore argues that PPPs involving long-term public expenditure, contingent liabilities or government guarantees cannot constitutionally be approved exclusively by the Executive.
38. The Petitioner challenges sections 59, 60, 61, 62 and 72(1), read with section 63 of the Public Private Partnerships Act, 2021, on the ground that they vest final approval of PPP project agreements, amendments and cancellations in the PPP Committee rather than Parliament. It is argued that section 63 only provides for parliamentary ratification of natural-resource-related PPPs, leaving major projects such as JKIA and KETRACO outside parliamentary scrutiny. The Petitioner relies on Orange Democratic Movement Party & 4 others v Speaker of National Assembly & 5 others [2024] KEHC 11494 (KLR) and In the Matter of the Speaker of the Senate & Another [2013] to submit that Parliament cannot constitutionally surrender or legislate away its core functions.
39. The Petitioner argues that PPPs are not merely procurement arrangements but mechanisms through which government assumes long-term financial commitments. They may involve annuity or availability payments, user charges, guarantees, indemnities, government support measures and contingent liabilities. The KETRACO project, for instance, involves a 30-year arrangement estimated at Kshs 95.68 billion, while PPPs generally may bind successive governments and future generations. Consequently, such commitments must be subjected to parliamentary pre-authorisation and oversight because they may affect future public budgets and potentially crowd out expenditure on essential constitutional functions and services.
40. The Petitioner challenges sections 40(3)(j), 44(5) and 44(6) of the PPPA for permitting contracting authorities to decide whether a Privately Initiated Proposal should undergo competitive procurement. Article 227 requires public procurement to be fair, equitable, transparent, competitive and cost-effective. The Petitioner submits that these constitutional standards are mandatory and cannot be displaced by open-ended executive discretion based on concepts such as “market interest” or “public interest.” Reliance is placed on the constitutional values of transparency and accountability under Article 10.
41. The Petitioner further contends that sections 40(3)(j), 44(5) and 44(6) lack objective standards and effective oversight mechanisms governing the decision whether to subject a PIP to open competitive procurement. The absence of a requirement to publish reasons is said to facilitate preferential treatment, inflated project costs and potentially corrupt arrangements between public officials and private proponents. The JKIA project is cited as an illustration, where the Petitioner alleges that although at least three PIPs were received, the proposal associated with Adani Airports Holdings Ltd was processed without transparent comparative evaluation. Similar concerns are raised regarding the KETRACO project.
42. The Petitioner challenges section 4(3) of the PPPA and section 4(2)(e) of the Public Procurement and Asset Disposal Act, 2015, to the extent that they exclude the application of PPADA to certain PPPs, particularly privately funded projects. It is submitted that PPADA is the principal statute giving effect to Article 227 and that excluding its procurement safeguards cannot result in exclusion of the constitutional standards themselves. Article 227 applies uniformly to public procurement irrespective of the funding model. The Petitioner therefore argues that private financing does not constitute a constitutional exception to the requirements of fairness, transparency, competitiveness and value for money.
43. The Petitioner submits that if the impugned provisions are declared unconstitutional, the declaration should operate retrospectively, particularly in relation to the JKIA and KETRACO projects. Article 2(4) provides that laws inconsistent with the Constitution are void to the extent of the inconsistency. The Petitioner relies on Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others [2012] eKLR , which recognised that retrospective application may be appropriate where justice, legal certainty or public policy so require, and S uleiman Said Shahbal v IEBC & 3 others [2014] eKLR . It also cites Nation Media Group Ltd v Onesmus Kilonzo [2015] eKLR for the proposition that, absent limitation by the Court, invalidity operates from the date of enactment.
44. The Petitioner argues that unconstitutional PPP arrangements should not be protected merely because contracts have already been executed. PPPs may create obligations lasting 20–30 years, including future payments, user charges, guarantees, indemnities and concessions over public assets. Reliance is placed on S ias Moise v Transitional Local Council of Greater Germiston (2001) ZACC 21, Minister of Health v Treatment Action Campaign (No. 2) [2002] ZACC 15, Law Society of Kenya v Attorney General & Another [2013] eKLR and Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016] eKLR. The submission is that contractual expectations cannot override constitutional supremacy and that the public interest in preventing long-term unconstitutional burdens outweighs private expectations arising from an unconstitutional process.
45. Finally, the Petitioner seeks a structural interdict on the basis that declaratory relief alone would be inadequate to address the alleged systemic violations surrounding the JKIA and KETRACO projects. The Petitioner alleges secrecy, lack of parliamentary ratification, inadequate public participation, non-disclosure of critical documents and executive overreach. In Trusted Society of Human Rights Alliance v AG & 2 others [2012] eKLR and Minister of Health v Treatment Action Campaign (No. 2) [2002] ZACC 15 , structural remedies are said to be appropriate where declarations alone cannot cure persistent institutional violations. The Petitioner also relies on Coalition for Reform and Democracy (CORD) v Attorney-General & another [2015] eKLR for the proposition that courts may fashion effective remedies suited to complex constitutional violations. The proposed orders include disclosure of the JKIA and KETRACO agreements, review of the PPPA and PPADA, reporting to the Court, and continued judicial supervision.
SUMMARY OF 3RD RESPONDENT SUBMISSIONS
46. The Attorney-General opposes the
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