Background
1. Before court are five petitions, namely, Petition E 834 of 2025 Consumer Federation of Kenya (COFEK) v The Prime Cabinet Secretary & 7 others; Petition 835 of 2025 Dr. Magare-Gikenyi B & 3 others v The Attorney General & 6 others; Petition E 158 of 2026 Kemunto Ateka & 2 others v The Cabinet Secretary For National Treasury and Planning & 8 others; Petition E 160 of 2026 Benard Opere v Attorney General & 11 others and Petition E 183 of 2026 Katiba Institute v National Assembly & 5 others.
2. On 6 th May 2026, Petition Nos. E158 of 2026; E 160 of 2026 and E 183 of 2026 were consolidated with Petition E 158 of 2026 being designated as the lead file. On 21 st May 2026 Petition No. E 834 of 2025 and E 835 of 2026 were also consolidated with Petition No. E158 of 2026. Upon consolidation, the court directed that the 5 th petitioner’s application dated 16 th March 2026 be given priority.
Summary of Application dated 16 th March 2026
3. The application is presented under Rules 3(2), (3), (4) and (5), 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and Article 23 of the Constitution. It is supported by the affidavit of Emily Kinama sworn on 16 th March 2026.
4. The application is seeking for orders that:
a) Spent
b) spent
c) Spent
d) Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from taking any steps targeted at operationalizing the National Infrastructure Fund Act, 2026.
e) Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from paying into the Fund (if already established) any proceeds of privatization including the proceeds of the Kenya Pipeline Company listing and the Safaricom divestiture.
f) Spent
5. The application is predicated upon the grounds that on 9 th March 2026, the National Infrastructure Fund Act, 2026 (the Act) was assented into law. The Act violates the Constitution on six grounds. First, that the Act excluded the Senate despite touching on county functions and finances thereby contravening article 110(1) (a) and (c) of the Constitution. Second, the Act undermines Parliament’s exclusive constitutional mandate to pre-authorise and oversee all national expenditure including borrowing.
6. Third, the Act excludes the Controller of Budget from her constitutional mandate under Article 228(4) and (6) of the Constitution. The Fund activities including borrowing, are sought to be implemented outside the elaborate fiscal control and oversight framework established under the Constitution. Fourth, the threshold established under Regulation 207(1) (b) & (c) of the Public Finance Management (National Government) Regulations for the establishment of public funds has not been met thereby violating Article 201 (d) of the Constitution.
7. Fifth, the Act does not also align with the dictates of Article 201(b) (ii); it fails to indicate how infrastructural development under it will be implemented in an equitable manner. Sixth, the Act violates Article 201(1) because it does not make any provision for public participation in the selection and implementation of any of the projects under the Act or any of its processes.
8. It is contended that, it took a constitutional challenge in Dr. Magare-Gikenyi B & 3 others v Attorney General & 4 others (Petition E835 of 2025) to prevent the National Infrastructure Fund (Fund) established under the Act from being established as a limited liability company, which would have placed it outside constitutional and legal oversight. Further that since the process to liquidate State Assets, the proceeds of which were to be paid into this Fund, had already been set in motion, it took the National Assembly 3 weeks from 12 th February to 6 th March 2026 to enact the law to regularise the Fund’s establishment and justify the intended subsequent exclusion of national resources from the Consolidated Fund.
9. It is stated that between 19 th and 24 th February 2026, the Kenyan government sold a 65% stake of Kenya Pipeline Company (KPC), raising Kshs. 106.3 billion from the sale. On 10 th March 2026, the National Assembly approved the sale of part of the government’s shares in Safaricom (15% of its 35% stake) to raise Kshs. 204 billion. The National Assembly also approved the government’s plan to forego receipt of future dividends on the balance of its Safaricom ownership (20%) in return for an upfront advancement of Kshs. 40.2 billion from the buyer. Cumulatively, this sale (and borrowing), set to be paid concluded by 31 st March 2026, amount to Kshs. 244.2 billion.
10. In addition to this, at least ten other State Corporations are earmarked for privatisation. It is contended that the Kshs. 350.5 billion already raised, together with all the money to be raised from the privatisation of national assets, are planned to be channeled into the Fund and be utilized under the framework established under the Act.
11. The petitioner states that under Executive Order No. 2 of 2023, the President has established various ministries and departments with the mandate to implement infrastructure in the very sectors envisioned under Section 2 of the Act. Further that, Executive Order No. 1 of 2025, issued on 21 st June 2025, recognised the wastefulness of duplicative public funds and declassified them, returning their functions to the relevant ministries. In direct contradiction, the impugned Act establishes a national Executive-controlled public fund to undertake functions already assigned to ministries and state departments under Executive Order No. 2 of 2023
12. It is the petitioner’s view that the entire scheme is designed to divert billions of taxpayer funds from the Consolidated Fund to a fund wholly controlled by the national executive outside the constitutional oversight and accountability. This undermines the Constitution, the rule of law, and devolution.
13. The petitioner asserts that it has established a prima facie case with likelihood of success; the petition raises substantive constitutional questions. The Public interest, balance of convenience and potential for irreversible harm all weigh in favour of preserving the substance of the petition by granting conservatory orders.
14. It is contended that unless the prayers sought are granted the petition shall be rendered nugatory because: rights will accrue and public resources be irrecoverably wasted by the setting up of the structures under the Act; billions of taxpayer funds, including the already raised, Kshs 350.5 billion will be diverted from the Consolidated Fund and applied outside the constitutional framework for expenditure and oversight; Counties will be locked out of sharing in the proceeds of the liquidation of national assets under Articles 201 and 202 of the Constitution among others.
1 st , 2 nd and 3 rd petitioners’ response
15. The 1 st , 2 nd and 3 rd petitioners place reliance on their application dated 9 th March 2026. Their said application was presented under articles 22, 48, 159 and 259 of the Constitution; section 9(4) of the Fair Administrative Action Act and Rule 13 of the Mutunga Rules.
16. The application similarly seeks conservatory orders staying or suspending the coming into force and implementation of the Act in its entirety and specifically, the provisions of sections 3, 4, 5, 6, 8, 12, 18, 21, 24, 25, 26, 32 and 36 thereof. It is contended that the process leading to the introduction, discussion and assent of the Infrastructure Fund Bill (National Assembly Bill No. 1 of 2026) violated the Constitution and was inconsistent with existing legislation and devoid of meaningful public participation.
17. It is contended that the proceedings of the National Assembly and the Senate did not objectively consider the contents of the Infrastructure Fund Bill. Instead, they were tainted by misinformation, undue influence and concealment of all materials and relevant issues, as castigated by among others the 1 st respondent.
18. The 1 st , 2 nd and 3 rd petitioners claim that the contents of the Act violate the Bill of Rights and the provisions of the Constitution and the established legal framework on public debt, expenditure of public resources, investment of public funds and the management of public institutions. Particularly articles 1, 2, 3, 10(1), (2), 27, 35, 43, 56, 94, 96, 114, 131, 153, 201, 205, 206, 211, 228, 232 of the Constitution.
19. It is pleaded that had meaningful public participation and concurrence with the Senate House been conducted, it would have established among others that the establishment of the Fund ought to have been made within the framework of the Consolidated fund; the establishment of the Fund violates the Constitution and the Public Finance Management Act (PFMA) and the framework of the Fund ought to have been established as an investment fund regulated by the Capital Markets Authority.
20. The 4 th to 10 th petitioners did not file formal responses to the application
1 st and 4 th respondent’s response
21. The 1 st and 4 th respondents opposed the motion through grounds of opposition dated 7 th April 2026. It is contended that, the motion does not meet any of the established criteria for issuance of conservatory orders; the Act enjoys legal presumption of constitutionality that ought not be rebutted at an interlocutory stage of proceedings and that to the extent that there is no claim for violation of any provision of the bill of rights chapter of the Constitution the court lacks jurisdiction to issue the conservatory orders which is only provided for in Article 23 (3) (c) of the Constitution.
22. It is urged that, the Regulations cannot supersede the provisions of a statute as proposed by the petitioner; the standing orders of Parliament provide sufficient public participation in the legislative process and no breach has been shown. Further, the Act does not concern counties; it arose from a Money Bill and concurrence did not also arise during the enactment process.
23. It is claimed that the Act is national in scope and that an Act of Parliament cannot be invalidated merely for inconsistency with another statute. It is denied that there is any conflict between the provisions of the Act and the PFMA as alleged or at all. In any event, any conflict between statutes is resolved through interpretation.
24. It is asserted that the National Assembly has constitutional discretion in determining regulatory frameworks and cannot be compelled to legislate in a particular manner. In addition, constitutional offices operate independently of statutory mention it would therefore be superfluous to provide for the Office of the Controller of Budget in all legislation as proposed. In addition, oversight powers of Parliament are constitutional and cannot be ousted by statute.
25. It is contended that the Act merely establishes a financing framework and does not amount to unconstitutional borrowing; borrowing is permitted under Article 211 of the Constitution. County revenue remains unaffected, and constitutional obligations are subject to progressive realization. Further, that policy implementation is an executive function.
26. It is pleaded that even if parts of the Act are unconstitutional, the doctrine of severability applies, and the entire Act should not be struck down on that account alone. Further, the Petition is premised on many premature and speculative claims.
2 nd and 6 th respondents’ response
27. The 2 nd and 6 th respondents opposed the application through replying affidavit sworn by Samuel Nkoroge, C.B.S 8 th April 2026. It is asserted that the National Infrastructure Fund Bill, 2026 met the public participation requirements under article 118 (1) (b) of the Constitution and Standing Order 127(3). The Bill was advertised in print media, memoranda invited, and county public hearings held in Five Counties; Homabay, Mombasa, Kilifi, Kwale and Nairobi. In addition, Stakeholders and experts were formally invited through letters dated 18 th February 2026 and gave submissions in a public participation forum on Wednesday, 25 th February 2026.
28. It is stated that some of the stakeholders invited included Hon. FCPA John Mbadi Ng’ongo, EGH – Cabinet Secretary, Ministry of National Treasury and Economic Planning; Dr. Chris K/ Kiptoo, CBS- Principal Secretary, the National Treasury; Hon. Dorcas Oduor, OGW, EBS, SC-Attorney General; Hon. Shadrack John Mose, CBS -Solicitor General among others.
29. It is further stated that the Committee reviewed memoranda, conducted clause-by-clause analysis, and incorporated amendments based on public input. The memoranda were received from Bunge la Mwananchi; Institute of Certified Public Accountants of Kenya (ICPAK); Katiba Institute; Institute of Public Finance; Controller of Budget among others
30. The Bill was tabled in the House on 3 rd and 4 th March 2025, when it was read a Second Time and committed to the Committee of the whole House. On 5 th March 2026, the Bill was read a Third Time in the National Assembly when the committee of the Whole House considered the Bill clause by clause as well as all the proposed amendments to the Bill. On 9 th March 2026, the president of the Republic of Kenya, assented the Bill into law as the National Infrastructure Fund Act, 2026.
31. The 2 nd and 6 th respondents cite article 109, 110(3) and 114 of the Constitution, to contend that the Bill was correctly passed as a money Bill without Senate concurrence because it does not affect the functions and powers of county governments under the Fourth Schedule to the Constitution. They maintain that Act’s purpose under section 4 of the Act to accelerate national infrastructure development, mobilise private and alternative funding, reducing debt reliance, and strengthening national capacity for complex projects fall exclusively within national government functions under article 186 and paragraphs 22(c), 22(d), and 31 of Part I of the Fourth Schedule.
32. It is emphasized that the Act establishes a framework of checks and balances between the National government and the National Assembly. The Board is mandated to prepare the Investment Policy, which must first be approved by the Cabinet Secretary and then submitted to the National Assembly for multi-stage approval under sections 25, 26 and 28 of the Act. The National Assembly must also ensure compliance with constitutional requirements, including public participation, before approval.
33. Further, the Committee’s report recommended amendment of the Bill to require National Assembly approval of the Investment Policy, thereby safeguarding public participation. Additionally, section 48 authorizes the Cabinet Secretary to issue regulations, including standards and procedures for participation. The Act thus provides adequate avenues for public involvement, since the National Assembly is mandated to conduct public participation when considering the Investment Policy.
34. It is contended that the Act protects the oversight role of the National Assembly. This is because it establishes a framework of checks and balances between the Executive and the National Assembly, ensuring oversight in the formulation and implementation of the Investment Policy. Under Sections 26 and 28, the Executive is mandated to prepare the policy, while the National Assembly must scrutinize, approve, amend, or decline it before implementation. Section 35 further requires the Cabinet Secretary to submit financial reports on the Fund to the Assembly. The Act therefore incorporates mandatory, multi stage approval processes that align with Article 95(b) of the Constitution, empowering the National Assembly to oversee State Organs.
35. It is asserted that the Act does not oust the mandate of the Controller of Budget because section 42 of the Act recognises her role in approving the withdrawal of public funds. The provision makes it clear that the Controller of Budget shall exercise oversight over the Fund by authorising only those withdrawals intended for the establishment of the Fund, as set out under section 4 of the Act. She therefore retains a central role in ensuring that withdrawals from the Fund are lawful and constitutionally compliant.
36. It is urged that the Act promotes public finance principles and equitable development by establishing a specialised national fund to mobilise resources from non traditional sources, thereby reducing reliance on public debt and strengthening national capacity to execute large scale infrastructure projects. The objectives of the Fund are aligned with Articles 10 and 201 of the Constitution and the Act is anchored in Article 206, section 24 of the PFMA, and Regulation 207 of the Public Finance Management (National Government) Regulations.
37. It is asserted that the Fund was properly proposed by the Cabinet Secretary, approved by the Cabinet, and enacted in compliance with constitutional and statutory requirements. Allegations that presidential appointments to the Governing Council undermine public finance principles are misguided, since the Council’s role is limited to policy direction without control over implementation. In addition, the Act requires that investment policies adhere to equitable expenditure principles under Article 201(b)(ii), and the claim that the Act fails to provide for equitable development or marginalised groups is speculative.
3 rd respondent response
38. The 3 rd respondent has opposed the application through replying affidavit sworn by Jeremiah Nyegenye, CBS on 2 nd April 2026 and grounds of opposition dated 20 th May 2026. It is contended that the question as to whether the National Infrastructure Fund Bill, 2026 concerned county governments, during the process of enactment did not arise between the Speakers of the Houses of Parliament. The Memorandum and Objects of the bill provides that it does not concern county governments since it does not affect functions of county governments. It therefore ought to have been considered only by the National Assembly.
39. It is contended that section 38 of the Act provides the source of the funds. The funds of the Fund comprise of expenditure of public funds and is thus a Money Bill within the meaning of article 114 of the Constitution. The participation of Senate was therefore also not required.
40. It is contended that the threshold for grant of conservatory orders set in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR has not been met. The application and petition are an affront to legislative mandate under Articles 94, 96 and 109 of the Constitution.
41. Under section 4 of the Act one of the purposes of the Fund is to accelerate the development of the national infrastructure and to reduce the reliance of public debt for financing of commercially viable infrastructure investments. It is not the public interest for the government to expedite national infrastructure development while redoing public debt to finance commercial investments. The orders sought are therefore against public interest.
42. It is asserted that the petitioner has not demonstrated any prejudice that will be suffered should the conservatory orders not be issued. Thus, the petition should be dismissed.
5 th respondent’s response
43. The 5 th respondent has supported the application through a replying affidavit sworn by FCPA Dr. Margaret Nyakang’o on 28 th April 2026. She cites articles 228, 225 (7), 252((1) (a), 252(1) (b) and 248 of the Constitution, and section 39 (8) of the PFMA, Section 5 (b) and (d) of the Controller of Budget Act, 2016 that speak to her establishment and mandate. It is contended that the establishment of a national Public Fund is guided by section 24(4) of the PFMA and is further subject to compliance with PFM Regulatory framework under section 24 and Regulations 207-209 of the Public Finance Management (National Government Regulations) 2015.
44. It is contended that the Fund is created under article 206(1) of the Constitution as a public fund. Its establishment outside the consolidated fund is a diversion of significant public resources in the form of privatisation proceeds to the Fund and subjects these resources to minimum oversight. The establishing institutions to manage functions that are domiciled in counties and national governments ministries, violates articles 201 of the Constitution and Regulation 207(b) and (c) and 207(1) of the PFM (National Government) Regulations.
45. It is contended that whereas article 206(1) of the Constitution as read with section 24 of the PFM Act and Regulation 207-209 of the PFM (National Government) Regulations provide for the establishment of other public funds, the establishment of such fund should not be inconsistent with the Constitution. Article 228(4) of the Constitution provides for Controller of Budget’s oversight and approval for withdrawal of funds established under article 204, 206 and 207.
46. It is thus contended that the failure to expressly provide for Controller of Budget’s approval for withdrawals from the Fund is an ouster of the Controller of Budget’s constitutional mandate to approve withdrawals from public funds established under article 206(1) of the Constitution. Further that article 228(5) provides that the Controller of Budget shall not approve any withdrawal form a public fund unless satisfied that the withdrawal is authorised by law.
47. It is contended that whereas section 42 of the Act provides that withdrawals from the Fund shall be in accordance with article 228(5), the said article does not operate in a vacuum but is triggered by Controller of Budget’s mandate under article 228(4), which the Act disregards. It is emphasised that Controller of Budget’s role is crucial because the Fund is created to undertake functions that should ideally be funded from the consolidated fund. In addition, the substantial resources intended to be ring-fenced by the Fund would require controls, that the Constitution already secured by establishing the office of the Controller of Budget.
48. That in ensuring fiscal transparency and accountability as sanctioned by article 201 and 228 (6) of the Constitution, the Controller of Budget’s reporting role entails preparing quarterly, annual and special reports to the Legislature and Executive on budget implementation matters of the National and County Governments. Section 35 of the Act defeats these provisions by providing for quarterly and annual reports to the Cabinet secretary. This further violates sections 164 and 166 of the PFMA.
49. The 5 th respondent states that section 19(2) (a) as read with section 31(2) of the Act permit borrowing without pre-approval by Parliament. Similarly, section 34 of the Act gives powers to the Cabinet Secretary to issue Government Support measures including guarantees, letters of credit, partial guarantees and political risk insurance. These instruments carry direct fiscal implication and may create contingent liabilities for the Government., thereby undermining article 211 of the Constitution and the PFMA and Recording and reporting of contingent liabilities.
50. The 5 th respondent urges this court to find that the Act is unconstitutional for its mandate; violating the public finance principle of prudent utilisation and clear reporting, openness, and accountability in financial matters as espoused in article 201 of the Constitution and exposes the National government to contingent liabilities by failing to adhere to article 211 of the Constitution.
1 st interested party’s response
51. The 1 st interested party filed replying affidavit by Ralmond Molenje sworn on 20 th May 2026. It supports the establishment of lawful and constitutionally compliant mechanisms capable of mobilising long-term infrastructure financing while reducing unsustainable pressure on public debt. Those mechanisms must however operate within the Constitutional framework, particularly articles 10, 73, 201, 206, 228 and 232.
52. It is contended that while statutes enacted by Parliament enjoy a presumption of constitutionality, such presumption does not displace the obligation of a statutory framework to remain consistent with constitutional safeguards governing public finance and institutional accountability.
53. It is contended that the issues raised by the petitioners disclose substantive constitutional questions touching on public finance governance, institutional accountability and legislative design which warrant careful judicial scrutiny to ensure that the operationalization of the Fund remains constitutionally compliant.
54. The 1 st interested party with regard to governance structures, notes that the legitimacy and effectiveness of sovereign backed investment vehicles substantially depend on institutional independence, professional competence, transparent appointment and adequate accountability safeguards.
55. Citing sections 6 and 7 of the Act, it is opined that the requirement for relevant professional experience should include structured participation or nomination mechanisms involving recognized professional and financial sector institutions in order to guarantee technical competence in project finance, capital markets, infrastructure financing and fiduciary governance. In the absence of adequate professional oversight safeguards, sovereign investment vehicles risk exposure to politicization, governance instability, weak investment discipline and diminished investor confidence.
56. It is observed that comparative infrastructure funds such as India’s National Investment and Infrastructure Fund (NIIF) have achieved investor confidence through professionally managed structures involving independent fund managers, institutional governance safeguards, transparent investment frameworks and mixed public private oversight mechanisms. The 1 st interested party contends that the oversight mandate of the Controller of Budget under article 228 of the Constitution constitutes a central safeguard in Kenya’s public finance architecture and should not be undermined rendered ineffective through statutory design. Any interpretation or operational framework adopted under the Act ought therefore to preserve meaningful constitutional oversight over withdrawals, expenditure authorization and accountability mechanisms involving public resources.
57. Further, the constitutional requirement under article 206 that all money raised or received by or on behalf of the National government be paid into the Consolidated Fund raises important constitutional considerations requiring careful reconciliation with the operational framework established under the Act. It is emphasized that strict adherence to constitutional legislative procedures is itself a fundamental component certainty, institutional legitimacy, institutional comity and investor confidence.
58. It is asserted that Infrastructure financing frameworks intended to mobilize long-term domestic and international capital must rest upon demonstrably lawful and constitutionally secure foundations capable of withstanding future legal and institutional uncertainty. Further, section 40(4) of the Act, which permits the Fund to operate bank accounts in commercial banks for investment and operational purpose, constitutes an important operational provision within the broader financial system.
59. It is pleaded that while section 40(1) provides for the holding of core funds at the Central Bank of Kenya, the operational flexibility to utilize commercial banking institutions remains necessary for project level transaction management, investment operations, financial intermediation and integration with domestic and international financial markets. This is because commercial banks play a critical intermediary role in infrastructure financing through syndicated lending, project finance administration among others.
60. In its view, the 1 st interested party opines that requiring all operational transactions to be conducted exclusively through purely administrative public finance structures may impede commercial responsiveness and undermine the flexibility required in modern blended finance arrangements. It is however urged that the participation of commercial banking institutions in the Fund’s operational framework must remain subject to strict regulatory supervision by the Central Bank of Kenya together with transparent audit and reporting obligations.
61. The 1 st interested party relies on the decision in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) and urges this court in determining the Constitutionality of the Act, to consider whether any impugned provisions are severable.
62. The 2 nd to 6 th interested parties did not file formal responses to the application.
Summary of the 5 th Petitioner/ Applicant’s submissions
63. The petitioner cites the decisions in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] KEHC 4297 (KLR ) for the law on conservatory orders. It further cites the decision in Kevin K Mwiti & others v Kenya School of Law & others [2015] KEHC 2788 (KLR); Mwenje & 18 others v Cabinet Secretary for Defence & 2 others [2025] KEHC 14491 (KLR) and Okiya Omtatah Okoiti v Kenya Railways Corporation (Petition E 843 of 2025) for the contention that it has established several arguable or triable constitutional questions in its application.
64. Among the issues distilled as arguable are, whether by including electricity transmission and distribution infrastructure, water r
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1. Before court are five petitions, namely, Petition E 834 of 2025 Consumer Federation of Kenya (COFEK) v The Prime Cabinet Secretary & 7 others; Petition 835 of 2025 Dr. Magare-Gikenyi B & 3 others v The Attorney General & 6 others; Petition E 158 of 2026 Kemunto Ateka & 2 others v The Cabinet Secretary For National Treasury and Planning & 8 others; Petition E 160 of 2026 Benard Opere v Attorney General & 11 others and Petition E 183 of 2026 Katiba Institute v National Assembly & 5 others.
2. On 6 th May 2026, Petition Nos. E158 of 2026; E 160 of 2026 and E 183 of 2026 were consolidated with Petition E 158 of 2026 being designated as the lead file. On 21 st May 2026 Petition No. E 834 of 2025 and E 835 of 2026 were also consolidated with Petition No. E158 of 2026. Upon consolidation, the court directed that the 5 th petitioner’s application dated 16 th March 2026 be given priority.
Summary of Application dated 16 th March 2026
3. The application is presented under Rules 3(2), (3), (4) and (5), 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and Article 23 of the Constitution. It is supported by the affidavit of Emily Kinama sworn on 16 th March 2026.
4. The application is seeking for orders that:
a) Spent
b) spent
c) Spent
d) Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from taking any steps targeted at operationalizing the National Infrastructure Fund Act, 2026.
e) Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from paying into the Fund (if already established) any proceeds of privatization including the proceeds of the Kenya Pipeline Company listing and the Safaricom divestiture.
f) Spent
5. The application is predicated upon the grounds that on 9 th March 2026, the National Infrastructure Fund Act, 2026 (the Act) was assented into law. The Act violates the Constitution on six grounds. First, that the Act excluded the Senate despite touching on county functions and finances thereby contravening article 110(1) (a) and (c) of the Constitution. Second, the Act undermines Parliament’s exclusive constitutional mandate to pre-authorise and oversee all national expenditure including borrowing.
6. Third, the Act excludes the Controller of Budget from her constitutional mandate under Article 228(4) and (6) of the Constitution. The Fund activities including borrowing, are sought to be implemented outside the elaborate fiscal control and oversight framework established under the Constitution. Fourth, the threshold established under Regulation 207(1) (b) & (c) of the Public Finance Management (National Government) Regulations for the establishment of public funds has not been met thereby violating Article 201 (d) of the Constitution.
7. Fifth, the Act does not also align with the dictates of Article 201(b) (ii); it fails to indicate how infrastructural development under it will be implemented in an equitable manner. Sixth, the Act violates Article 201(1) because it does not make any provision for public participation in the selection and implementation of any of the projects under the Act or any of its processes.
8. It is contended that, it took a constitutional challenge in Dr. Magare-Gikenyi B & 3 others v Attorney General & 4 others (Petition E835 of 2025) to prevent the National Infrastructure Fund (Fund) established under the Act from being established as a limited liability company, which would have placed it outside constitutional and legal oversight. Further that since the process to liquidate State Assets, the proceeds of which were to be paid into this Fund, had already been set in motion, it took the National Assembly 3 weeks from 12 th February to 6 th March 2026 to enact the law to regularise the Fund’s establishment and justify the intended subsequent exclusion of national resources from the Consolidated Fund.
9. It is stated that between 19 th and 24 th February 2026, the Kenyan government sold a 65% stake of Kenya Pipeline Company (KPC), raising Kshs. 106.3 billion from the sale. On 10 th March 2026, the National Assembly approved the sale of part of the government’s shares in Safaricom (15% of its 35% stake) to raise Kshs. 204 billion. The National Assembly also approved the government’s plan to forego receipt of future dividends on the balance of its Safaricom ownership (20%) in return for an upfront advancement of Kshs. 40.2 billion from the buyer. Cumulatively, this sale (and borrowing), set to be paid concluded by 31 st March 2026, amount to Kshs. 244.2 billion.
10. In addition to this, at least ten other State Corporations are earmarked for privatisation. It is contended that the Kshs. 350.5 billion already raised, together with all the money to be raised from the privatisation of national assets, are planned to be channeled into the Fund and be utilized under the framework established under the Act.
11. The petitioner states that under Executive Order No. 2 of 2023, the President has established various ministries and departments with the mandate to implement infrastructure in the very sectors envisioned under Section 2 of the Act. Further that, Executive Order No. 1 of 2025, issued on 21 st June 2025, recognised the wastefulness of duplicative public funds and declassified them, returning their functions to the relevant ministries. In direct contradiction, the impugned Act establishes a national Executive-controlled public fund to undertake functions already assigned to ministries and state departments under Executive Order No. 2 of 2023
12. It is the petitioner’s view that the entire scheme is designed to divert billions of taxpayer funds from the Consolidated Fund to a fund wholly controlled by the national executive outside the constitutional oversight and accountability. This undermines the Constitution, the rule of law, and devolution.
13. The petitioner asserts that it has established a prima facie case with likelihood of success; the petition raises substantive constitutional questions. The Public interest, balance of convenience and potential for irreversible harm all weigh in favour of preserving the substance of the petition by granting conservatory orders.
14. It is contended that unless the prayers sought are granted the petition shall be rendered nugatory because: rights will accrue and public resources be irrecoverably wasted by the setting up of the structures under the Act; billions of taxpayer funds, including the already raised, Kshs 350.5 billion will be diverted from the Consolidated Fund and applied outside the constitutional framework for expenditure and oversight; Counties will be locked out of sharing in the proceeds of the liquidation of national assets under Articles 201 and 202 of the Constitution among others.
1 st , 2 nd and 3 rd petitioners’ response
15. The 1 st , 2 nd and 3 rd petitioners place reliance on their application dated 9 th March 2026. Their said application was presented under articles 22, 48, 159 and 259 of the Constitution; section 9(4) of the Fair Administrative Action Act and Rule 13 of the Mutunga Rules.
16. The application similarly seeks conservatory orders staying or suspending the coming into force and implementation of the Act in its entirety and specifically, the provisions of sections 3, 4, 5, 6, 8, 12, 18, 21, 24, 25, 26, 32 and 36 thereof. It is contended that the process leading to the introduction, discussion and assent of the Infrastructure Fund Bill (National Assembly Bill No. 1 of 2026) violated the Constitution and was inconsistent with existing legislation and devoid of meaningful public participation.
17. It is contended that the proceedings of the National Assembly and the Senate did not objectively consider the contents of the Infrastructure Fund Bill. Instead, they were tainted by misinformation, undue influence and concealment of all materials and relevant issues, as castigated by among others the 1 st respondent.
18. The 1 st , 2 nd and 3 rd petitioners claim that the contents of the Act violate the Bill of Rights and the provisions of the Constitution and the established legal framework on public debt, expenditure of public resources, investment of public funds and the management of public institutions. Particularly articles 1, 2, 3, 10(1), (2), 27, 35, 43, 56, 94, 96, 114, 131, 153, 201, 205, 206, 211, 228, 232 of the Constitution.
19. It is pleaded that had meaningful public participation and concurrence with the Senate House been conducted, it would have established among others that the establishment of the Fund ought to have been made within the framework of the Consolidated fund; the establishment of the Fund violates the Constitution and the Public Finance Management Act (PFMA) and the framework of the Fund ought to have been established as an investment fund regulated by the Capital Markets Authority.
20. The 4 th to 10 th petitioners did not file formal responses to the application
1 st and 4 th respondent’s response
21. The 1 st and 4 th respondents opposed the motion through grounds of opposition dated 7 th April 2026. It is contended that, the motion does not meet any of the established criteria for issuance of conservatory orders; the Act enjoys legal presumption of constitutionality that ought not be rebutted at an interlocutory stage of proceedings and that to the extent that there is no claim for violation of any provision of the bill of rights chapter of the Constitution the court lacks jurisdiction to issue the conservatory orders which is only provided for in Article 23 (3) (c) of the Constitution.
22. It is urged that, the Regulations cannot supersede the provisions of a statute as proposed by the petitioner; the standing orders of Parliament provide sufficient public participation in the legislative process and no breach has been shown. Further, the Act does not concern counties; it arose from a Money Bill and concurrence did not also arise during the enactment process.
23. It is claimed that the Act is national in scope and that an Act of Parliament cannot be invalidated merely for inconsistency with another statute. It is denied that there is any conflict between the provisions of the Act and the PFMA as alleged or at all. In any event, any conflict between statutes is resolved through interpretation.
24. It is asserted that the National Assembly has constitutional discretion in determining regulatory frameworks and cannot be compelled to legislate in a particular manner. In addition, constitutional offices operate independently of statutory mention it would therefore be superfluous to provide for the Office of the Controller of Budget in all legislation as proposed. In addition, oversight powers of Parliament are constitutional and cannot be ousted by statute.
25. It is contended that the Act merely establishes a financing framework and does not amount to unconstitutional borrowing; borrowing is permitted under Article 211 of the Constitution. County revenue remains unaffected, and constitutional obligations are subject to progressive realization. Further, that policy implementation is an executive function.
26. It is pleaded that even if parts of the Act are unconstitutional, the doctrine of severability applies, and the entire Act should not be struck down on that account alone. Further, the Petition is premised on many premature and speculative claims.
2 nd and 6 th respondents’ response
27. The 2 nd and 6 th respondents opposed the application through replying affidavit sworn by Samuel Nkoroge, C.B.S 8 th April 2026. It is asserted that the National Infrastructure Fund Bill, 2026 met the public participation requirements under article 118 (1) (b) of the Constitution and Standing Order 127(3). The Bill was advertised in print media, memoranda invited, and county public hearings held in Five Counties; Homabay, Mombasa, Kilifi, Kwale and Nairobi. In addition, Stakeholders and experts were formally invited through letters dated 18 th February 2026 and gave submissions in a public participation forum on Wednesday, 25 th February 2026.
28. It is stated that some of the stakeholders invited included Hon. FCPA John Mbadi Ng’ongo, EGH – Cabinet Secretary, Ministry of National Treasury and Economic Planning; Dr. Chris K/ Kiptoo, CBS- Principal Secretary, the National Treasury; Hon. Dorcas Oduor, OGW, EBS, SC-Attorney General; Hon. Shadrack John Mose, CBS -Solicitor General among others.
29. It is further stated that the Committee reviewed memoranda, conducted clause-by-clause analysis, and incorporated amendments based on public input. The memoranda were received from Bunge la Mwananchi; Institute of Certified Public Accountants of Kenya (ICPAK); Katiba Institute; Institute of Public Finance; Controller of Budget among others
30. The Bill was tabled in the House on 3 rd and 4 th March 2025, when it was read a Second Time and committed to the Committee of the whole House. On 5 th March 2026, the Bill was read a Third Time in the National Assembly when the committee of the Whole House considered the Bill clause by clause as well as all the proposed amendments to the Bill. On 9 th March 2026, the president of the Republic of Kenya, assented the Bill into law as the National Infrastructure Fund Act, 2026.
31. The 2 nd and 6 th respondents cite article 109, 110(3) and 114 of the Constitution, to contend that the Bill was correctly passed as a money Bill without Senate concurrence because it does not affect the functions and powers of county governments under the Fourth Schedule to the Constitution. They maintain that Act’s purpose under section 4 of the Act to accelerate national infrastructure development, mobilise private and alternative funding, reducing debt reliance, and strengthening national capacity for complex projects fall exclusively within national government functions under article 186 and paragraphs 22(c), 22(d), and 31 of Part I of the Fourth Schedule.
32. It is emphasized that the Act establishes a framework of checks and balances between the National government and the National Assembly. The Board is mandated to prepare the Investment Policy, which must first be approved by the Cabinet Secretary and then submitted to the National Assembly for multi-stage approval under sections 25, 26 and 28 of the Act. The National Assembly must also ensure compliance with constitutional requirements, including public participation, before approval.
33. Further, the Committee’s report recommended amendment of the Bill to require National Assembly approval of the Investment Policy, thereby safeguarding public participation. Additionally, section 48 authorizes the Cabinet Secretary to issue regulations, including standards and procedures for participation. The Act thus provides adequate avenues for public involvement, since the National Assembly is mandated to conduct public participation when considering the Investment Policy.
34. It is contended that the Act protects the oversight role of the National Assembly. This is because it establishes a framework of checks and balances between the Executive and the National Assembly, ensuring oversight in the formulation and implementation of the Investment Policy. Under Sections 26 and 28, the Executive is mandated to prepare the policy, while the National Assembly must scrutinize, approve, amend, or decline it before implementation. Section 35 further requires the Cabinet Secretary to submit financial reports on the Fund to the Assembly. The Act therefore incorporates mandatory, multi stage approval processes that align with Article 95(b) of the Constitution, empowering the National Assembly to oversee State Organs.
35. It is asserted that the Act does not oust the mandate of the Controller of Budget because section 42 of the Act recognises her role in approving the withdrawal of public funds. The provision makes it clear that the Controller of Budget shall exercise oversight over the Fund by authorising only those withdrawals intended for the establishment of the Fund, as set out under section 4 of the Act. She therefore retains a central role in ensuring that withdrawals from the Fund are lawful and constitutionally compliant.
36. It is urged that the Act promotes public finance principles and equitable development by establishing a specialised national fund to mobilise resources from non traditional sources, thereby reducing reliance on public debt and strengthening national capacity to execute large scale infrastructure projects. The objectives of the Fund are aligned with Articles 10 and 201 of the Constitution and the Act is anchored in Article 206, section 24 of the PFMA, and Regulation 207 of the Public Finance Management (National Government) Regulations.
37. It is asserted that the Fund was properly proposed by the Cabinet Secretary, approved by the Cabinet, and enacted in compliance with constitutional and statutory requirements. Allegations that presidential appointments to the Governing Council undermine public finance principles are misguided, since the Council’s role is limited to policy direction without control over implementation. In addition, the Act requires that investment policies adhere to equitable expenditure principles under Article 201(b)(ii), and the claim that the Act fails to provide for equitable development or marginalised groups is speculative.
3 rd respondent response
38. The 3 rd respondent has opposed the application through replying affidavit sworn by Jeremiah Nyegenye, CBS on 2 nd April 2026 and grounds of opposition dated 20 th May 2026. It is contended that the question as to whether the National Infrastructure Fund Bill, 2026 concerned county governments, during the process of enactment did not arise between the Speakers of the Houses of Parliament. The Memorandum and Objects of the bill provides that it does not concern county governments since it does not affect functions of county governments. It therefore ought to have been considered only by the National Assembly.
39. It is contended that section 38 of the Act provides the source of the funds. The funds of the Fund comprise of expenditure of public funds and is thus a Money Bill within the meaning of article 114 of the Constitution. The participation of Senate was therefore also not required.
40. It is contended that the threshold for grant of conservatory orders set in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR has not been met. The application and petition are an affront to legislative mandate under Articles 94, 96 and 109 of the Constitution.
41. Under section 4 of the Act one of the purposes of the Fund is to accelerate the development of the national infrastructure and to reduce the reliance of public debt for financing of commercially viable infrastructure investments. It is not the public interest for the government to expedite national infrastructure development while redoing public debt to finance commercial investments. The orders sought are therefore against public interest.
42. It is asserted that the petitioner has not demonstrated any prejudice that will be suffered should the conservatory orders not be issued. Thus, the petition should be dismissed.
5 th respondent’s response
43. The 5 th respondent has supported the application through a replying affidavit sworn by FCPA Dr. Margaret Nyakang’o on 28 th April 2026. She cites articles 228, 225 (7), 252((1) (a), 252(1) (b) and 248 of the Constitution, and section 39 (8) of the PFMA, Section 5 (b) and (d) of the Controller of Budget Act, 2016 that speak to her establishment and mandate. It is contended that the establishment of a national Public Fund is guided by section 24(4) of the PFMA and is further subject to compliance with PFM Regulatory framework under section 24 and Regulations 207-209 of the Public Finance Management (National Government Regulations) 2015.
44. It is contended that the Fund is created under article 206(1) of the Constitution as a public fund. Its establishment outside the consolidated fund is a diversion of significant public resources in the form of privatisation proceeds to the Fund and subjects these resources to minimum oversight. The establishing institutions to manage functions that are domiciled in counties and national governments ministries, violates articles 201 of the Constitution and Regulation 207(b) and (c) and 207(1) of the PFM (National Government) Regulations.
45. It is contended that whereas article 206(1) of the Constitution as read with section 24 of the PFM Act and Regulation 207-209 of the PFM (National Government) Regulations provide for the establishment of other public funds, the establishment of such fund should not be inconsistent with the Constitution. Article 228(4) of the Constitution provides for Controller of Budget’s oversight and approval for withdrawal of funds established under article 204, 206 and 207.
46. It is thus contended that the failure to expressly provide for Controller of Budget’s approval for withdrawals from the Fund is an ouster of the Controller of Budget’s constitutional mandate to approve withdrawals from public funds established under article 206(1) of the Constitution. Further that article 228(5) provides that the Controller of Budget shall not approve any withdrawal form a public fund unless satisfied that the withdrawal is authorised by law.
47. It is contended that whereas section 42 of the Act provides that withdrawals from the Fund shall be in accordance with article 228(5), the said article does not operate in a vacuum but is triggered by Controller of Budget’s mandate under article 228(4), which the Act disregards. It is emphasised that Controller of Budget’s role is crucial because the Fund is created to undertake functions that should ideally be funded from the consolidated fund. In addition, the substantial resources intended to be ring-fenced by the Fund would require controls, that the Constitution already secured by establishing the office of the Controller of Budget.
48. That in ensuring fiscal transparency and accountability as sanctioned by article 201 and 228 (6) of the Constitution, the Controller of Budget’s reporting role entails preparing quarterly, annual and special reports to the Legislature and Executive on budget implementation matters of the National and County Governments. Section 35 of the Act defeats these provisions by providing for quarterly and annual reports to the Cabinet secretary. This further violates sections 164 and 166 of the PFMA.
49. The 5 th respondent states that section 19(2) (a) as read with section 31(2) of the Act permit borrowing without pre-approval by Parliament. Similarly, section 34 of the Act gives powers to the Cabinet Secretary to issue Government Support measures including guarantees, letters of credit, partial guarantees and political risk insurance. These instruments carry direct fiscal implication and may create contingent liabilities for the Government., thereby undermining article 211 of the Constitution and the PFMA and Recording and reporting of contingent liabilities.
50. The 5 th respondent urges this court to find that the Act is unconstitutional for its mandate; violating the public finance principle of prudent utilisation and clear reporting, openness, and accountability in financial matters as espoused in article 201 of the Constitution and exposes the National government to contingent liabilities by failing to adhere to article 211 of the Constitution.
1 st interested party’s response
51. The 1 st interested party filed replying affidavit by Ralmond Molenje sworn on 20 th May 2026. It supports the establishment of lawful and constitutionally compliant mechanisms capable of mobilising long-term infrastructure financing while reducing unsustainable pressure on public debt. Those mechanisms must however operate within the Constitutional framework, particularly articles 10, 73, 201, 206, 228 and 232.
52. It is contended that while statutes enacted by Parliament enjoy a presumption of constitutionality, such presumption does not displace the obligation of a statutory framework to remain consistent with constitutional safeguards governing public finance and institutional accountability.
53. It is contended that the issues raised by the petitioners disclose substantive constitutional questions touching on public finance governance, institutional accountability and legislative design which warrant careful judicial scrutiny to ensure that the operationalization of the Fund remains constitutionally compliant.
54. The 1 st interested party with regard to governance structures, notes that the legitimacy and effectiveness of sovereign backed investment vehicles substantially depend on institutional independence, professional competence, transparent appointment and adequate accountability safeguards.
55. Citing sections 6 and 7 of the Act, it is opined that the requirement for relevant professional experience should include structured participation or nomination mechanisms involving recognized professional and financial sector institutions in order to guarantee technical competence in project finance, capital markets, infrastructure financing and fiduciary governance. In the absence of adequate professional oversight safeguards, sovereign investment vehicles risk exposure to politicization, governance instability, weak investment discipline and diminished investor confidence.
56. It is observed that comparative infrastructure funds such as India’s National Investment and Infrastructure Fund (NIIF) have achieved investor confidence through professionally managed structures involving independent fund managers, institutional governance safeguards, transparent investment frameworks and mixed public private oversight mechanisms. The 1 st interested party contends that the oversight mandate of the Controller of Budget under article 228 of the Constitution constitutes a central safeguard in Kenya’s public finance architecture and should not be undermined rendered ineffective through statutory design. Any interpretation or operational framework adopted under the Act ought therefore to preserve meaningful constitutional oversight over withdrawals, expenditure authorization and accountability mechanisms involving public resources.
57. Further, the constitutional requirement under article 206 that all money raised or received by or on behalf of the National government be paid into the Consolidated Fund raises important constitutional considerations requiring careful reconciliation with the operational framework established under the Act. It is emphasized that strict adherence to constitutional legislative procedures is itself a fundamental component certainty, institutional legitimacy, institutional comity and investor confidence.
58. It is asserted that Infrastructure financing frameworks intended to mobilize long-term domestic and international capital must rest upon demonstrably lawful and constitutionally secure foundations capable of withstanding future legal and institutional uncertainty. Further, section 40(4) of the Act, which permits the Fund to operate bank accounts in commercial banks for investment and operational purpose, constitutes an important operational provision within the broader financial system.
59. It is pleaded that while section 40(1) provides for the holding of core funds at the Central Bank of Kenya, the operational flexibility to utilize commercial banking institutions remains necessary for project level transaction management, investment operations, financial intermediation and integration with domestic and international financial markets. This is because commercial banks play a critical intermediary role in infrastructure financing through syndicated lending, project finance administration among others.
60. In its view, the 1 st interested party opines that requiring all operational transactions to be conducted exclusively through purely administrative public finance structures may impede commercial responsiveness and undermine the flexibility required in modern blended finance arrangements. It is however urged that the participation of commercial banking institutions in the Fund’s operational framework must remain subject to strict regulatory supervision by the Central Bank of Kenya together with transparent audit and reporting obligations.
61. The 1 st interested party relies on the decision in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) and urges this court in determining the Constitutionality of the Act, to consider whether any impugned provisions are severable.
62. The 2 nd to 6 th interested parties did not file formal responses to the application.
Summary of the 5 th Petitioner/ Applicant’s submissions
63. The petitioner cites the decisions in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] KEHC 4297 (KLR ) for the law on conservatory orders. It further cites the decision in Kevin K Mwiti & others v Kenya School of Law & others [2015] KEHC 2788 (KLR); Mwenje & 18 others v Cabinet Secretary for Defence & 2 others [2025] KEHC 14491 (KLR) and Okiya Omtatah Okoiti v Kenya Railways Corporation (Petition E 843 of 2025) for the contention that it has established several arguable or triable constitutional questions in its application.
64. Among the issues distilled as arguable are, whether by including electricity transmission and distribution infrastructure, water r
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