REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
(CONSTITUTIONAL & HUMAN RIGHTS DIVISION)
PETITION NO. E216 OF 2025
BETWEEN
OKIYA OMTATAH OKOITI 1 ST PETITIONER
NYAKINA WYCLIFE GISEBE 2 ND PETITIONER
ELIUD KARANJA MATINDI 3 RD PETITIONER
BERNARD MUCHIRI MUCHERE 4 TH PETITIONER
DR. MAGARE-GIKENYI BENJAMIN 5 TH PETITIONER
KELVIN SAITOTI NAIKUNI 6 TH PETITIONER
OLIVE NAISINKEI AMBROSE 7 TH PETITIONER
DR. DANCAN OTIENO ONYANGO 8 TH PETITIONER
NAOMI NYAKERARIO MISATI 9 TH PETITIONER
VERSUS
H. E. (FORMER) PRESIDENT
UHURU MUIGAI KENYATTA 1 ST RESPONDENT
THE NATIONAL EXECUTIVE 2 ND RESPONDENT
THE CABINET SECRETARY FOR
THE NATIONAL TREASURY 3 RD RESPONDENT
THE PRINCIPAL SECRETARY FOR
THE NATIONAL TREASURY 4 TH RESPONDENT
THE DIRECTOR GENERAL PUBLIC
DEBT MANAGEMENT OFFICE 5 TH RESPONDENT
THE HON. ATTORNEY GENERAL 6 TH RESPONDENT
THE CONTROLLER OF BUDGET 7 TH RESPONDENT
THE AUDITOR GENERAL 8 TH RESPONDENT
THE NATIONAL ASSEMBLY 9 TH RESPONDENT
FORMER CONTROLLER OF BUDGET
AGNES ODHIAMBO 10 TH RESPONDENT
FORMER AUDITOR GENERAL
EDWARD OUKO 11 TH RESPONDENT
FORMER ATTORNEY GENERAL
PROF. GITHU MUIGAI 12 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
HENRY ROTICH 13 TH RESPONDENT
FORMER TREASURY PRINCIPAL SECRETARY
KAMAU THUGGE 14 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
UKUR YATANI 15 th RESPONDENT
FORMER TREASURY CABINET SECRETARY
NJUGUNA NDUNGU 16 TH RESPONDENT
THE CONTROLLER OF BUDGET
MARGARET NYAKANG’O 17 TH RESPONDENT
THE AUDITOR GENERAL NANCY GATHUNGU 18 TH RESPONDENT
THE GOVERNOR, THE
CENTRAL BANK OF KENYA 19 th RESPONDENT
THE ETHICS AND ANTI-CORRUPTION 20 th RESPONDENT
FORMER EACC CEO/SECRETARY
HALAKHE D. WAQO 21 st RESPONDENT
INTERNATIONAL MONETARY FUND (IMF) 22 nd RESPONDENT
AND
THE SENATE OF KENYA 1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA 2 ND INTERESTED PARTY
KATIBA INSTITUTE 3 RD INTERESTED PARTY
KENYA HUMAN RIGHTS COMMISSION 4 TH INTERESTED PARTY
KENYA NATIONAL COMMISSION
ON HUMAN RIGHTS 5 TH INTERESTED PARTY
TRANSPARENCY INTERNATIONAL 6 TH INTERESTED PARTY
THE INSTITUTE FOR SOCIAL
ACCOUNTABILITY (TISA) 7 TH INTERESTED PARTY
INTERNATIONAL COMMISSION
OF JURISTS (ICJ-KENYA) 8 TH INTERESTED PARTY
THE KENYA DEBT ABOLITION
NETWORK (KDAN) 9 TH INTERESTED PARTY
NATIONAL TAXPAYERS
ASSOCIATION (NTA) 10TH INTERESTED PARTY
COMMITTEE FOR THE ABOLITION OF
ILLEGITIMATE DEBTS (CADTM) 11 TH INTERESTED PARTY
AND
CENTRE FOR LEGAL AID AND CLINICAL
LEGAL EDUCATION (CLACLE) AMICUS CURIAE
RULING ON IMMUNITY OF THE 22 ND RESPONDENT-IMF
Introduction
1. The International Monetary Fund (IMF) was founded in 1945 as the agency charged with overseeing the so-called Bretton Woods system (named after the town in New Hampshire where the summit establishing it was held), as well as promoting post-war global economic growth. The Fund is a specialized agency established by agreement among its member governments and having wide international responsibilities, as defined in its Articles of Agreement, in economic and related fields within the meaning of Article 57 of the Charter of the United Nations. By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Fund is, and is required to function as an independent international organization.
2. The United Nations and the Fund are subject to certain necessary limitations for the safeguarding of confidential material furnished to them by their members or others, and therefore, nothing in the Agreement can be construed to require either of them to furnish any information, the furnishing of which would, in its judgment, constitute a violation of the confidence of any of its members or anyone from whom it shall have received such information, or which would otherwise interfere with the orderly conduct of its operations.
3. Since the IMF’s Articles of Agreement is an international agreement, its interpretation is governed by the rules on the interpretation of treaties. These rules are not necessarily the same as those governing the interpretation of the national laws in its member countries.
The application
4. The 22 nd respondent- the International Monetary Fund (IMF) applies, vide a notice of motion dated 17 th March, 2026 to be struck out of these proceedings for reasons that it enjoys immunity from litigation instituted by the petitioners herein, pursuant to the Bretton Woods Agreements Act Cap 464 and Article IX Section 3 of the IMF Articles of Agreement. It also contends that it has not waived its immunity, of being exempt from all legal processes.
5. The application is supported by an affidavit sworn by The Assistant General Counsel of the IMF, Ms Melissa Su Thomas, on 17 th March, 2026, deposing that IMF does not waive its immunity in respect of this petition and does not consent to this court’s jurisdiction.
6. It also prays that in the event that it is not struck out of the petition, then the court should direct the petitioners to serve it with the petition and time allowed to enable it file its response to the petition.
7. The 22 nd respondent asserts that Kenya is a signatory to the Articles of Agreement of the International Monetary Fund [IMF] and that it ratified the Fund Agreement establishing IMF by enacting the Bretton Woods Agreements Act on 10 th December, 1953 . That Section 5 of the Bretton Woods Agreement Act provides that the provisions of the Fund Agreement shall have the force of law in Kenya.
8. The 22 nd respondent relies on Section 3 of Article IX of the Fund Agreement which provides that IMF, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.
9. The IMF further argues that Kenyan law expressly grants IMF immunity from every form of judicial process except to the extent that IMF expressly waives immunity. Further, that the nature of the immunity granted to IMF is such that it cannot be sued, impleaded, summoned, or otherwise subjected to the jurisdiction of national courts in any matter unless it agrees to waive immunity in a particular case, which immunity from every form of judicial process is intended to ensure its independent functioning.
10. It is urged that though not part of the sections of the Fund Agreement that were domesticated by the Bretton Woods Agreements Act, Section 1 of Article IX of the Fund Agreement sets out the purpose of the immunities and privileges granted to IMF being: “To enable the fund to fulfill the functions with which it is entrusted, the status, immunities, and privileges set forth in this Article shall be accorded to the fund in the territories of each member.” Accordingly, that the IMF, its immunity exists to permit it to effectively perform its global mandate without interference from or dependence on any single member’s courts.
11. IMF relies on the affidavit sworn by its Assistant General Counsel and decisions such as Creative Print House Limited vs Eastern and Southern African Trade and Development Bank [2015] eKLR where the High Court is said to have considered the immunity granted to the East African Development Bank (EADB) vide the treaty amending and re-enacting the Charter of the East Africa Development Bank entered into on 23 rd June 1980 (the Charter) which was domesticated through the East Africa Development Bank Act, Cap 493A and which granted EADB immunity on similar terms to those granted to IMF.
12. The IMF asserts that this Court has no jurisdiction to entertain a matter where the party brought before the court is immune or exempted from the jurisdiction of the court.
13. On how various courts have upheld the immunity of the Fund, reliance is placed on various decisions including the United States Supreme Court in Jam vs International Finance Corp... 586 U.S (2019) which is said to have recognized that under the Articles of Agreement of the International Monetary Fund, IMF enjoys immunity from every form of judicial process except to the extent that it expressly waives immunity.
14. It further relies on the United States Court of Appeal, District of Columbia Circuit , in Eugene Nyambal Vs International Monetary Fund , 772 F.3d 277, 280 (D.C. Cir. 2014) where it was held that IMF’s immunity is broader than the protection afforded by the International Organization Immunities Act (IOIA’s) aegis alone. That under the dual protection conferred by the fund’s Articles of agreement and the IOIA, “ the fund ... enjoys immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purposes of any proceedings or by the terms of any contract.
15. Further reliance is placed on the United States Court of Appeal, District of Columbia Circuit , in Leonard A Sacks & associates P.C V International Monetary Fund No. 21 – 7034 (D.C Cir. 2022) where the court, when considering an argument that the IMF had waived immunity held that it commences its analysis from the shared premise that IMF is generally immune from suit.
16. It was therefore urged that IMF has immunity from every form of judicial process in Kenya, Kenyan laws having granted it this immunity pursuant to the provisions of the Bretton Woods Agreement Act and that therefore the immunity should be upheld by this court.
17. The 22 nd respondent further contends that the IMF’s immunity does not contradict the Kenyan Constitution and relies on the case of Karen Njeri Kandie Vs Alassane Ba & another [2017] KESC 13 (KLR), where the Supreme Court held that granting immunity to international organisations in order to meet Kenya’s international obligation does not violate the right of access to justice.
18. Further contention is that IMF had not waved immunity as provided for under Section 3 of Article IX of the Fund Agreement, which is the only exception to IMF’s immunity and which must be an express waiver of the immunity or by the terms of a contract. In this case, it was submitted that there is no suggestion that there are terms of a contract by which IMF waived its immunity and that its participation in these proceedings is to assert its immunity and seek to be excluded from the proceedings.
19. Reliance is further placed on Ministry of Defence of the Government of the United Kingdom v Ndegwa [1983] eKLR , where the Court of Appeal is said to have held that Kenyan Courts will not entertain proceedings against a party entitled to immunity, such as foreign sovereigns, diplomats, consular offices and international organization, unless the immunity is waived. IMF maintains that in the absence of an express waiver of IMF’s immunity, the prayers sought in the application dated 17 th March 2026 should be upheld and the IMF be struck out from these proceedings.
Responses
20. The 1 st and 4 th petitioners filed grounds of opposition while the 9 th petitioner only filed submissions. They all jointly and severally contend that the 22 nd respondent ought to remain a party to these proceedings because it is a proper and necessary party and not a peripheral observer or mere by stander as pleaded in paragraph 14 of the petition that:
“…..
..it has been sued for violating Kenyan laws on borrowing by advancing on lent loan whereby redemptions were rolled over in 2023/2024 and 2024/2025 of Kshs 10b for each financial year and forward budgeted redemption rollover for 2025-2028 of Kshs 10b for each financial year aggregating to Kshs 50b”
21. The petitioners assert that the IMF having on lent loan to Kenya, which is not found in our statutes, constitutes an ineligible transaction disguised as a rollover hence its participation in these proceedings forms an integral factual and legal component of the dispute. Further, that any orders issued by this court concerning the IMF on lent loan will directly affect the IMF hence this court should not strike it out as the Court may end up making unenforceable orders.
22. According to the petitioners, the central constitutional question before this Court is not whether the IMF enjoys functional immunities under international law.It is their assertion that the real question is whether a treaty or statute may validly immunise an international institution from constitutional scrutiny where constitutional violations affecting sovereignty, public finance and fundamental rights are alleged and that in this regard, the Constitution answers this question unequivocally in the negative.
23. The petitioners contend that albeit Section 5 of the Bretton Woods Agreements Act and Article IX, Section 3 of the IMF Articles of Agreement purports to grant the IMF immunity from judicial process, the 22 nd Respondent conveniently overlooks the foundational and non-derogable principle of Article 2 of the Constitution of Kenya, 2010 on the supremacy of the Constitution and the fact that "Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid."
24. The petitioners further contend that the Bretton Woods Agreements Act , being a statute enacted by Parliament, is ordinary law and not part of the Constitution and that it derives validity only from the Constitution and cannot override it. They argue that, to the extent that the Bretton Woods Agreements Act or the IMF Articles of Agreement purport to grant immunity that would shield the IMF from constitutional scrutiny or prevent Kenyan courts from enforcing the Constitution, such provisions are void to the extent of the inconsistency with the Constitution.
25. According to the petitioners, the correct interpretation of Articles 2(5) and 2(6) of the Constitution is that these provisions regulate the relationship between domestic/national law and international law and have nothing to do with the supremacy of the Constitution.second, that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the Constitution and third, is that the words "under this Constitution" at the end of Article 2(6) do NOT mean that treaties form part of the Constitution. Instead, they mean "as provided by the Constitution" , e.g, through domestication by an Act of Parliament.
26. They further argue that if treaties were equivalent to the Constitution, ratification of any treaty would require an amendment to the Constitution under Articles 255 and 256 , which is clearly not the constitutional design.
27. The petitioners argue that constitutionally, in their legislative power, both the Executive and Parliament are limited by Article 2(4) to ratify and domesticate treaties which conform to and are not in contravention of the Constitution.
28. The petitioners additionally hold the view that since the Bretton Woods Agreements Act (Cap 464) , which commenced on 10 th December 1963, predates the 2010 Constitution, it is subject to Section 7(1) of the Sixth Schedule to the Constitution , which provides that All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.
29. The petitioners contend that Treaty-making power cannot amend the Constitution and that by dint of Articles 255, 256 and 257 , the powers to ratify treaties do not confer on the political arms of government (Parliament and the Executive) the capacity to amend the Constitution through the back door using treaties. That these Articles establish the exclusive procedures for constitutional amendment. They argue that the Executive and Parliament cannot, through treaty ratification- alter constitutional structures, cede sovereignty, restructure judicial authority, modify Chapter Twelve on Public Finance, relinquish constitutional rights or surrender sovereign authority without approval of the people of Kenya.
30. The petitioners cite Chandler P. Anderson in his writing on the Extent and Limitations of the Treaty-Making Power Under the Constitution [1] (published in The American Journal of International Law where the author argues that:
“The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation.
Where the treaty-making power is exercised by the sovereign power of a nation, the right to treat with other nations rests wholly in sovereignty and extends to every question pertaining to international relations.
Where, however, the treaty-making power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant.
So in the United States, where the people, as the sovereign power, have delegated through the medium of their State conventions or State legislatures the treaty-making power to a designated section of the Federal Government under the Constitution, such power rests in grant and is to be measured and exercised under the terms of such grant. The people, as the sovereign power of the nation, may by amendment to the Constitution enlarge or curtail the power delegated, or change the method of exercising such power, or the branch of the government authorized to exercise it; but subject to such changes, the provisions of the Constitution must always determine where the treaty-making power is lodged and the extent of such power and the manner of exercising it. The Federal Government is one of dele- gated and enumerated powers, and whatever inherent right that government may have to exercise the treaty-making power for the nation, such right is subject to the organic or fundamental law of the nation.”
*****
“... the power to make treaties for the nation has been delegated without reservation to the President with two-thirds of the Senators present concurring. The delegation of this power without reservation, however, does not necessarily mean that it may be exercised without limitations, and the question of what, if any, limitations there are still remains to be considered.”
******
“The Constitution in terms imposes no specific limitations upon the subjects to be dealt with or the stipulations to be contained in treaties, and it must be presumed that in thus conferring the power generally and without definition the intention was that it should embrace every question affecting the interests of the nation in its international re- lations, subject only to such limitations upon the exercise of such power as might arise on account of the fundamental or organic law of the nation.
As stated by Mr. Justice Clifford, in delivering the opinion of the United States Supreme Court, in Holden v. Joy (17 Wall. 242)-
Inasmuch as the power is given, in general terms, without any de- scription of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.
These limitations upon the exercise of the treaty-making power are due to the fact that the power itself rests in grant, as shown above, and being one of the delegated powers, stands on no higher footing than any of the other powers delegated under the Constitution, and, as the power to amend the Constitution is distinct from the treaty-making power, it cannot be exercised to the detriment or exclusion of the other provisions of the Constitution.
In the language of Mr. Justice Field, in delivering the opinion of the United States Supreme Court, in the case of Geofroy v. Riggs (133 U. S. 267)-
The treaty power, as expressed in the Constitution, is in terms un- limited excepted by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States.”
“... the only limitations upon the exercise of the treaty-making power arise from the fact that it is one of the delegated powers resting in grant and is limited by the terms of the grant, and whatever limitations there are under the Constitution are due, on the one hand, to the division of certain powers between the several branches of the Federal Government, and, on the other hand, to the denial of certain powers to the Federal Government, and the reservation of certain powers to the States or to the people. The present question, therefore, brings the discussion back to that point.
In considering this question it will be convenient to observe the distinction between the classes of limitations above indicated.
Taking up first the possible limitations suggested by the division of certain powers under the Constitution among the several branches of the Federal Government, it necessarily follows from the subordination of the treaty-making power to the Constitution that it must be so exercised as not to encroach upon the powers delegated to the executive, legislative, or judicial branches of the government. It can neither override the powers delegated elsewhere nor deprive the other branches of the government of the right to exercise the powers entrusted to them by the Constitution. So far as the judicial branch of the government is concerned, no encroachment by the treaty-making power has arisen or can arise, for under Article III., Section 2, of the Constitution, quoted above, the judicial power extends to all cases arising under treaties, which provision has been construed to mean, not simply jurisdiction to apply treaty stipulations as rules of law, but the power to declare void a treaty in conflict with constitutional limitations. It is to be noted, however, that no treaty as yet has ever been declared void by the Supreme Court. So far as the executive is concerned, no conflict has arisen or is likely to arise, as that branch of the government is a part of the treaty-making power and not only has the initiative in the making of treaties but also has the right to withhold them from final ratification even after they are approved by the Senate. But between the legislative branch and the treaty- making power the question of its independent jurisdiction over matters entrusted to Congress has frequently been at issue.”
31. Therefore, in the view of the petitioners, to accept the IMF's argument that it is immune from all legal processes and that it has not waived immunity, would allow constitutional amendment through treaty law, which is a direct violation of Articles 255-257 of the Constitution on how the Constitution can be amended and would further be tantamount to swaying and continuing to submit Kenyans to the jurisdiction of the IMF thereby ceding too much power to the Executive and Legislature, allowing them to use treaty law to irregularly smuggle and entrench a foreign system of managing public finances into Kenya's constitutional order, in total and contemptuous disregard of the amendment procedures sanctioned by Articles 255, 256 and 257 .
32. The petitioners further contend that in any event, the IMF is not a constitutionally established institution hence, the IMF cannot by mere treaty enjoy legitimate immunity in Kenya unless the Constitution is amended to allow such a development. They argue that the Constitutionally protected rights are absolute, not tentative or conditional rights and that within Kenya, the Constitution is superior to international agreements and therefore the Government cannot ratify treaties of unconstitutional content.
33. Further argument by the petitioners is that nothing in the Constitution makes treaties equal or supreme to the Constitution and that any construction where treaties are equal to or superior to the Constitution would permit irregular amendment of the Constitution in a manner not sanctioned and/or anticipated by Articles 255, 256 and 257 .
34. The petitioners argue that Article 165 on jurisdiction of the High Court to determine the constitutionality of any law, any act or omission of a state organ and any question concerning constitutional interpretation cannot be excluded by treaty. They urge that no statute, treaty, or international agreement may remove this jurisdiction and that a clause granting immunity from "every form of judicial process" is in vain as it cannot constitutionally bar Constitutional interpretation; enforcement of the Bill of Rights; and Judicial review of public power exercised within Kenya.
35. Further argument is that the petition does not seek to enforce against IMF assets or property but seeks constitutional determination regarding governmental conduct involving the 22 nd Respondent. Immunity from execution or commercial liability cannot operate as immunity from constitutional scrutiny. Therefore, that to hold otherwise would create extra-constitutional zones immune from the Constitution, contrary to Articles 1 and 2 .
36. On the constitutional principles governing sovereign borrowing and treaty-making, the petitioners contend that the Treaty Making and Ratification Act (No. 45 of 2012) operationalises constitutional limits on treaty power, under sections which reinforce constitutional supremacy such as Section 3(3) which requires a referendum where a treaty affects sovereignty, independence, or territorial integrity; Section 6 which binds negotiators to constitutional values and requires consideration of regulatory impact; Section 7 which obliges the Cabinet to certify constitutional compatibility before ratification; and Section 8(9) which expressly prohibits Parliament from approving treaties inconsistent with the Constitution
37. The petitioners further argue that Article 201 of the Constitution sets binding principles governing public finance, including openness, accountability, responsible financial management, public participation, and equitable sharing of fiscal burdens. That these principles operate as substantive constitutional standards against which borrowing decisions - including those negotiated with the IMF - may be assessed.
38. Further, that Article 211 governs borrowing power which must be authorised by an Act of Parliament and Parliament must be informed of loan terms and conditions. They argue that because debt binds future taxpayers, borrowing authority cannot be exercised solely by the executive branch.
39. The petitioners assail the IMF programme, which conditions disbursements on structural reforms including privatisation, as raising serious questions about compliance with Article 211 of the Constitution . Additionally, they argue that Articles 220 and 221 require that national budgets disclose borrowing proposals and anticipated public liabilities and, in this regard, they fault the IMF On-lent loan’ for violating Article 201(c) and (d) on intergenerational equity and prudent public finance management.
40. The petitioners further contend that the immunity clause does not extend to unconstitutional conduct, even assuming that the IMF enjoys certain immunities under the Bretton Woods Agreements Act , in view of the principle of constitutional supremacy under Article 2 is non-derogable.
41. They urge that under international law, immunities granted to international organisations are functional and are limited to acts necessary for the performance of their official functions, and are not absolute licenses to act with impunity, nor do they shield such organisations from scrutiny where their actions directly cause constitutional violations within a member state. Reliance was place don Jam et al. v. International Finance Corp. (US Supreme Court, February 27, 2019) , where the US Supreme Court ruled 7-1 in favour of a group of Indian farmers who sued the IFC, the private sector arm of the World Bank and held that international organisations are not entitled to absolute immunity and can be sued for their commercial activities and for actions that cause harm. Therefore, that by analogy, the IMF can be sued in cases where its activities have caused harm, including constitutional harm to local communities and the body politic.
42. It is argued that in this case, the 22 nd Respondent's actions in imposing conditionalities that violate Kenya's constitutional framework on public finance, sovereignty and national security constitute conduct that falls outside the scope of any legitimate immunity hence, this court is said to have jurisdiction to examine such conduct and to determine whether it is consistent with the Constitution.
43. On comparative constitutional reasoning supporting the supremacy of the Constitution over treaties, the petitioners rely on American constitutional commentary which recognises that treaty powers cannot be construed to destroy constitutional limitations or fundamental rights. They quote several authors including:
a. Thomas Jefferson who asserted the U.S. Constitution's supremacy over treaties when he wrote: "Our particular security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution." (Le
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
(CONSTITUTIONAL & HUMAN RIGHTS DIVISION)
PETITION NO. E216 OF 2025
BETWEEN
OKIYA OMTATAH OKOITI 1 ST PETITIONER
NYAKINA WYCLIFE GISEBE 2 ND PETITIONER
ELIUD KARANJA MATINDI 3 RD PETITIONER
BERNARD MUCHIRI MUCHERE 4 TH PETITIONER
DR. MAGARE-GIKENYI BENJAMIN 5 TH PETITIONER
KELVIN SAITOTI NAIKUNI 6 TH PETITIONER
OLIVE NAISINKEI AMBROSE 7 TH PETITIONER
DR. DANCAN OTIENO ONYANGO 8 TH PETITIONER
NAOMI NYAKERARIO MISATI 9 TH PETITIONER
VERSUS
H. E. (FORMER) PRESIDENT
UHURU MUIGAI KENYATTA 1 ST RESPONDENT
THE NATIONAL EXECUTIVE 2 ND RESPONDENT
THE CABINET SECRETARY FOR
THE NATIONAL TREASURY 3 RD RESPONDENT
THE PRINCIPAL SECRETARY FOR
THE NATIONAL TREASURY 4 TH RESPONDENT
THE DIRECTOR GENERAL PUBLIC
DEBT MANAGEMENT OFFICE 5 TH RESPONDENT
THE HON. ATTORNEY GENERAL 6 TH RESPONDENT
THE CONTROLLER OF BUDGET 7 TH RESPONDENT
THE AUDITOR GENERAL 8 TH RESPONDENT
THE NATIONAL ASSEMBLY 9 TH RESPONDENT
FORMER CONTROLLER OF BUDGET
AGNES ODHIAMBO 10 TH RESPONDENT
FORMER AUDITOR GENERAL
EDWARD OUKO 11 TH RESPONDENT
FORMER ATTORNEY GENERAL
PROF. GITHU MUIGAI 12 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
HENRY ROTICH 13 TH RESPONDENT
FORMER TREASURY PRINCIPAL SECRETARY
KAMAU THUGGE 14 TH RESPONDENT
FORMER TREASURY CABINET SECRETARY
UKUR YATANI 15 th RESPONDENT
FORMER TREASURY CABINET SECRETARY
NJUGUNA NDUNGU 16 TH RESPONDENT
THE CONTROLLER OF BUDGET
MARGARET NYAKANG’O 17 TH RESPONDENT
THE AUDITOR GENERAL NANCY GATHUNGU 18 TH RESPONDENT
THE GOVERNOR, THE
CENTRAL BANK OF KENYA 19 th RESPONDENT
THE ETHICS AND ANTI-CORRUPTION 20 th RESPONDENT
FORMER EACC CEO/SECRETARY
HALAKHE D. WAQO 21 st RESPONDENT
INTERNATIONAL MONETARY FUND (IMF) 22 nd RESPONDENT
AND
THE SENATE OF KENYA 1 ST INTERESTED PARTY
LAW SOCIETY OF KENYA 2 ND INTERESTED PARTY
KATIBA INSTITUTE 3 RD INTERESTED PARTY
KENYA HUMAN RIGHTS COMMISSION 4 TH INTERESTED PARTY
KENYA NATIONAL COMMISSION
ON HUMAN RIGHTS 5 TH INTERESTED PARTY
TRANSPARENCY INTERNATIONAL 6 TH INTERESTED PARTY
THE INSTITUTE FOR SOCIAL
ACCOUNTABILITY (TISA) 7 TH INTERESTED PARTY
INTERNATIONAL COMMISSION
OF JURISTS (ICJ-KENYA) 8 TH INTERESTED PARTY
THE KENYA DEBT ABOLITION
NETWORK (KDAN) 9 TH INTERESTED PARTY
NATIONAL TAXPAYERS
ASSOCIATION (NTA) 10TH INTERESTED PARTY
COMMITTEE FOR THE ABOLITION OF
ILLEGITIMATE DEBTS (CADTM) 11 TH INTERESTED PARTY
AND
CENTRE FOR LEGAL AID AND CLINICAL
LEGAL EDUCATION (CLACLE) AMICUS CURIAE
RULING ON IMMUNITY OF THE 22 ND RESPONDENT-IMF
Introduction
1. The International Monetary Fund (IMF) was founded in 1945 as the agency charged with overseeing the so-called Bretton Woods system (named after the town in New Hampshire where the summit establishing it was held), as well as promoting post-war global economic growth. The Fund is a specialized agency established by agreement among its member governments and having wide international responsibilities, as defined in its Articles of Agreement, in economic and related fields within the meaning of Article 57 of the Charter of the United Nations. By reason of the nature of its international responsibilities and the terms of its Articles of Agreement, the Fund is, and is required to function as an independent international organization.
2. The United Nations and the Fund are subject to certain necessary limitations for the safeguarding of confidential material furnished to them by their members or others, and therefore, nothing in the Agreement can be construed to require either of them to furnish any information, the furnishing of which would, in its judgment, constitute a violation of the confidence of any of its members or anyone from whom it shall have received such information, or which would otherwise interfere with the orderly conduct of its operations.
3. Since the IMF’s Articles of Agreement is an international agreement, its interpretation is governed by the rules on the interpretation of treaties. These rules are not necessarily the same as those governing the interpretation of the national laws in its member countries.
The application
4. The 22 nd respondent- the International Monetary Fund (IMF) applies, vide a notice of motion dated 17 th March, 2026 to be struck out of these proceedings for reasons that it enjoys immunity from litigation instituted by the petitioners herein, pursuant to the Bretton Woods Agreements Act Cap 464 and Article IX Section 3 of the IMF Articles of Agreement. It also contends that it has not waived its immunity, of being exempt from all legal processes.
5. The application is supported by an affidavit sworn by The Assistant General Counsel of the IMF, Ms Melissa Su Thomas, on 17 th March, 2026, deposing that IMF does not waive its immunity in respect of this petition and does not consent to this court’s jurisdiction.
6. It also prays that in the event that it is not struck out of the petition, then the court should direct the petitioners to serve it with the petition and time allowed to enable it file its response to the petition.
7. The 22 nd respondent asserts that Kenya is a signatory to the Articles of Agreement of the International Monetary Fund [IMF] and that it ratified the Fund Agreement establishing IMF by enacting the Bretton Woods Agreements Act on 10 th December, 1953 . That Section 5 of the Bretton Woods Agreement Act provides that the provisions of the Fund Agreement shall have the force of law in Kenya.
8. The 22 nd respondent relies on Section 3 of Article IX of the Fund Agreement which provides that IMF, its property and its assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purpose of any proceedings or by the terms of any contract.
9. The IMF further argues that Kenyan law expressly grants IMF immunity from every form of judicial process except to the extent that IMF expressly waives immunity. Further, that the nature of the immunity granted to IMF is such that it cannot be sued, impleaded, summoned, or otherwise subjected to the jurisdiction of national courts in any matter unless it agrees to waive immunity in a particular case, which immunity from every form of judicial process is intended to ensure its independent functioning.
10. It is urged that though not part of the sections of the Fund Agreement that were domesticated by the Bretton Woods Agreements Act, Section 1 of Article IX of the Fund Agreement sets out the purpose of the immunities and privileges granted to IMF being: “To enable the fund to fulfill the functions with which it is entrusted, the status, immunities, and privileges set forth in this Article shall be accorded to the fund in the territories of each member.” Accordingly, that the IMF, its immunity exists to permit it to effectively perform its global mandate without interference from or dependence on any single member’s courts.
11. IMF relies on the affidavit sworn by its Assistant General Counsel and decisions such as Creative Print House Limited vs Eastern and Southern African Trade and Development Bank [2015] eKLR where the High Court is said to have considered the immunity granted to the East African Development Bank (EADB) vide the treaty amending and re-enacting the Charter of the East Africa Development Bank entered into on 23 rd June 1980 (the Charter) which was domesticated through the East Africa Development Bank Act, Cap 493A and which granted EADB immunity on similar terms to those granted to IMF.
12. The IMF asserts that this Court has no jurisdiction to entertain a matter where the party brought before the court is immune or exempted from the jurisdiction of the court.
13. On how various courts have upheld the immunity of the Fund, reliance is placed on various decisions including the United States Supreme Court in Jam vs International Finance Corp... 586 U.S (2019) which is said to have recognized that under the Articles of Agreement of the International Monetary Fund, IMF enjoys immunity from every form of judicial process except to the extent that it expressly waives immunity.
14. It further relies on the United States Court of Appeal, District of Columbia Circuit , in Eugene Nyambal Vs International Monetary Fund , 772 F.3d 277, 280 (D.C. Cir. 2014) where it was held that IMF’s immunity is broader than the protection afforded by the International Organization Immunities Act (IOIA’s) aegis alone. That under the dual protection conferred by the fund’s Articles of agreement and the IOIA, “ the fund ... enjoys immunity from every form of judicial process except to the extent that it expressly waives its immunity for the purposes of any proceedings or by the terms of any contract.
15. Further reliance is placed on the United States Court of Appeal, District of Columbia Circuit , in Leonard A Sacks & associates P.C V International Monetary Fund No. 21 – 7034 (D.C Cir. 2022) where the court, when considering an argument that the IMF had waived immunity held that it commences its analysis from the shared premise that IMF is generally immune from suit.
16. It was therefore urged that IMF has immunity from every form of judicial process in Kenya, Kenyan laws having granted it this immunity pursuant to the provisions of the Bretton Woods Agreement Act and that therefore the immunity should be upheld by this court.
17. The 22 nd respondent further contends that the IMF’s immunity does not contradict the Kenyan Constitution and relies on the case of Karen Njeri Kandie Vs Alassane Ba & another [2017] KESC 13 (KLR), where the Supreme Court held that granting immunity to international organisations in order to meet Kenya’s international obligation does not violate the right of access to justice.
18. Further contention is that IMF had not waved immunity as provided for under Section 3 of Article IX of the Fund Agreement, which is the only exception to IMF’s immunity and which must be an express waiver of the immunity or by the terms of a contract. In this case, it was submitted that there is no suggestion that there are terms of a contract by which IMF waived its immunity and that its participation in these proceedings is to assert its immunity and seek to be excluded from the proceedings.
19. Reliance is further placed on Ministry of Defence of the Government of the United Kingdom v Ndegwa [1983] eKLR , where the Court of Appeal is said to have held that Kenyan Courts will not entertain proceedings against a party entitled to immunity, such as foreign sovereigns, diplomats, consular offices and international organization, unless the immunity is waived. IMF maintains that in the absence of an express waiver of IMF’s immunity, the prayers sought in the application dated 17 th March 2026 should be upheld and the IMF be struck out from these proceedings.
Responses
20. The 1 st and 4 th petitioners filed grounds of opposition while the 9 th petitioner only filed submissions. They all jointly and severally contend that the 22 nd respondent ought to remain a party to these proceedings because it is a proper and necessary party and not a peripheral observer or mere by stander as pleaded in paragraph 14 of the petition that:
“…..
..it has been sued for violating Kenyan laws on borrowing by advancing on lent loan whereby redemptions were rolled over in 2023/2024 and 2024/2025 of Kshs 10b for each financial year and forward budgeted redemption rollover for 2025-2028 of Kshs 10b for each financial year aggregating to Kshs 50b”
21. The petitioners assert that the IMF having on lent loan to Kenya, which is not found in our statutes, constitutes an ineligible transaction disguised as a rollover hence its participation in these proceedings forms an integral factual and legal component of the dispute. Further, that any orders issued by this court concerning the IMF on lent loan will directly affect the IMF hence this court should not strike it out as the Court may end up making unenforceable orders.
22. According to the petitioners, the central constitutional question before this Court is not whether the IMF enjoys functional immunities under international law.It is their assertion that the real question is whether a treaty or statute may validly immunise an international institution from constitutional scrutiny where constitutional violations affecting sovereignty, public finance and fundamental rights are alleged and that in this regard, the Constitution answers this question unequivocally in the negative.
23. The petitioners contend that albeit Section 5 of the Bretton Woods Agreements Act and Article IX, Section 3 of the IMF Articles of Agreement purports to grant the IMF immunity from judicial process, the 22 nd Respondent conveniently overlooks the foundational and non-derogable principle of Article 2 of the Constitution of Kenya, 2010 on the supremacy of the Constitution and the fact that "Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid."
24. The petitioners further contend that the Bretton Woods Agreements Act , being a statute enacted by Parliament, is ordinary law and not part of the Constitution and that it derives validity only from the Constitution and cannot override it. They argue that, to the extent that the Bretton Woods Agreements Act or the IMF Articles of Agreement purport to grant immunity that would shield the IMF from constitutional scrutiny or prevent Kenyan courts from enforcing the Constitution, such provisions are void to the extent of the inconsistency with the Constitution.
25. According to the petitioners, the correct interpretation of Articles 2(5) and 2(6) of the Constitution is that these provisions regulate the relationship between domestic/national law and international law and have nothing to do with the supremacy of the Constitution.second, that both general rules of international law (custom) and treaties (conventions) form part of Kenyan law and NOT part of the Constitution and third, is that the words "under this Constitution" at the end of Article 2(6) do NOT mean that treaties form part of the Constitution. Instead, they mean "as provided by the Constitution" , e.g, through domestication by an Act of Parliament.
26. They further argue that if treaties were equivalent to the Constitution, ratification of any treaty would require an amendment to the Constitution under Articles 255 and 256 , which is clearly not the constitutional design.
27. The petitioners argue that constitutionally, in their legislative power, both the Executive and Parliament are limited by Article 2(4) to ratify and domesticate treaties which conform to and are not in contravention of the Constitution.
28. The petitioners additionally hold the view that since the Bretton Woods Agreements Act (Cap 464) , which commenced on 10 th December 1963, predates the 2010 Constitution, it is subject to Section 7(1) of the Sixth Schedule to the Constitution , which provides that All law in force immediately before the effective date continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.
29. The petitioners contend that Treaty-making power cannot amend the Constitution and that by dint of Articles 255, 256 and 257 , the powers to ratify treaties do not confer on the political arms of government (Parliament and the Executive) the capacity to amend the Constitution through the back door using treaties. That these Articles establish the exclusive procedures for constitutional amendment. They argue that the Executive and Parliament cannot, through treaty ratification- alter constitutional structures, cede sovereignty, restructure judicial authority, modify Chapter Twelve on Public Finance, relinquish constitutional rights or surrender sovereign authority without approval of the people of Kenya.
30. The petitioners cite Chandler P. Anderson in his writing on the Extent and Limitations of the Treaty-Making Power Under the Constitution [1] (published in The American Journal of International Law where the author argues that:
“The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation.
Where the treaty-making power is exercised by the sovereign power of a nation, the right to treat with other nations rests wholly in sovereignty and extends to every question pertaining to international relations.
Where, however, the treaty-making power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant.
So in the United States, where the people, as the sovereign power, have delegated through the medium of their State conventions or State legislatures the treaty-making power to a designated section of the Federal Government under the Constitution, such power rests in grant and is to be measured and exercised under the terms of such grant. The people, as the sovereign power of the nation, may by amendment to the Constitution enlarge or curtail the power delegated, or change the method of exercising such power, or the branch of the government authorized to exercise it; but subject to such changes, the provisions of the Constitution must always determine where the treaty-making power is lodged and the extent of such power and the manner of exercising it. The Federal Government is one of dele- gated and enumerated powers, and whatever inherent right that government may have to exercise the treaty-making power for the nation, such right is subject to the organic or fundamental law of the nation.”
*****
“... the power to make treaties for the nation has been delegated without reservation to the President with two-thirds of the Senators present concurring. The delegation of this power without reservation, however, does not necessarily mean that it may be exercised without limitations, and the question of what, if any, limitations there are still remains to be considered.”
******
“The Constitution in terms imposes no specific limitations upon the subjects to be dealt with or the stipulations to be contained in treaties, and it must be presumed that in thus conferring the power generally and without definition the intention was that it should embrace every question affecting the interests of the nation in its international re- lations, subject only to such limitations upon the exercise of such power as might arise on account of the fundamental or organic law of the nation.
As stated by Mr. Justice Clifford, in delivering the opinion of the United States Supreme Court, in Holden v. Joy (17 Wall. 242)-
Inasmuch as the power is given, in general terms, without any de- scription of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.
These limitations upon the exercise of the treaty-making power are due to the fact that the power itself rests in grant, as shown above, and being one of the delegated powers, stands on no higher footing than any of the other powers delegated under the Constitution, and, as the power to amend the Constitution is distinct from the treaty-making power, it cannot be exercised to the detriment or exclusion of the other provisions of the Constitution.
In the language of Mr. Justice Field, in delivering the opinion of the United States Supreme Court, in the case of Geofroy v. Riggs (133 U. S. 267)-
The treaty power, as expressed in the Constitution, is in terms un- limited excepted by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States.”
“... the only limitations upon the exercise of the treaty-making power arise from the fact that it is one of the delegated powers resting in grant and is limited by the terms of the grant, and whatever limitations there are under the Constitution are due, on the one hand, to the division of certain powers between the several branches of the Federal Government, and, on the other hand, to the denial of certain powers to the Federal Government, and the reservation of certain powers to the States or to the people. The present question, therefore, brings the discussion back to that point.
In considering this question it will be convenient to observe the distinction between the classes of limitations above indicated.
Taking up first the possible limitations suggested by the division of certain powers under the Constitution among the several branches of the Federal Government, it necessarily follows from the subordination of the treaty-making power to the Constitution that it must be so exercised as not to encroach upon the powers delegated to the executive, legislative, or judicial branches of the government. It can neither override the powers delegated elsewhere nor deprive the other branches of the government of the right to exercise the powers entrusted to them by the Constitution. So far as the judicial branch of the government is concerned, no encroachment by the treaty-making power has arisen or can arise, for under Article III., Section 2, of the Constitution, quoted above, the judicial power extends to all cases arising under treaties, which provision has been construed to mean, not simply jurisdiction to apply treaty stipulations as rules of law, but the power to declare void a treaty in conflict with constitutional limitations. It is to be noted, however, that no treaty as yet has ever been declared void by the Supreme Court. So far as the executive is concerned, no conflict has arisen or is likely to arise, as that branch of the government is a part of the treaty-making power and not only has the initiative in the making of treaties but also has the right to withhold them from final ratification even after they are approved by the Senate. But between the legislative branch and the treaty- making power the question of its independent jurisdiction over matters entrusted to Congress has frequently been at issue.”
31. Therefore, in the view of the petitioners, to accept the IMF's argument that it is immune from all legal processes and that it has not waived immunity, would allow constitutional amendment through treaty law, which is a direct violation of Articles 255-257 of the Constitution on how the Constitution can be amended and would further be tantamount to swaying and continuing to submit Kenyans to the jurisdiction of the IMF thereby ceding too much power to the Executive and Legislature, allowing them to use treaty law to irregularly smuggle and entrench a foreign system of managing public finances into Kenya's constitutional order, in total and contemptuous disregard of the amendment procedures sanctioned by Articles 255, 256 and 257 .
32. The petitioners further contend that in any event, the IMF is not a constitutionally established institution hence, the IMF cannot by mere treaty enjoy legitimate immunity in Kenya unless the Constitution is amended to allow such a development. They argue that the Constitutionally protected rights are absolute, not tentative or conditional rights and that within Kenya, the Constitution is superior to international agreements and therefore the Government cannot ratify treaties of unconstitutional content.
33. Further argument by the petitioners is that nothing in the Constitution makes treaties equal or supreme to the Constitution and that any construction where treaties are equal to or superior to the Constitution would permit irregular amendment of the Constitution in a manner not sanctioned and/or anticipated by Articles 255, 256 and 257 .
34. The petitioners argue that Article 165 on jurisdiction of the High Court to determine the constitutionality of any law, any act or omission of a state organ and any question concerning constitutional interpretation cannot be excluded by treaty. They urge that no statute, treaty, or international agreement may remove this jurisdiction and that a clause granting immunity from "every form of judicial process" is in vain as it cannot constitutionally bar Constitutional interpretation; enforcement of the Bill of Rights; and Judicial review of public power exercised within Kenya.
35. Further argument is that the petition does not seek to enforce against IMF assets or property but seeks constitutional determination regarding governmental conduct involving the 22 nd Respondent. Immunity from execution or commercial liability cannot operate as immunity from constitutional scrutiny. Therefore, that to hold otherwise would create extra-constitutional zones immune from the Constitution, contrary to Articles 1 and 2 .
36. On the constitutional principles governing sovereign borrowing and treaty-making, the petitioners contend that the Treaty Making and Ratification Act (No. 45 of 2012) operationalises constitutional limits on treaty power, under sections which reinforce constitutional supremacy such as Section 3(3) which requires a referendum where a treaty affects sovereignty, independence, or territorial integrity; Section 6 which binds negotiators to constitutional values and requires consideration of regulatory impact; Section 7 which obliges the Cabinet to certify constitutional compatibility before ratification; and Section 8(9) which expressly prohibits Parliament from approving treaties inconsistent with the Constitution
37. The petitioners further argue that Article 201 of the Constitution sets binding principles governing public finance, including openness, accountability, responsible financial management, public participation, and equitable sharing of fiscal burdens. That these principles operate as substantive constitutional standards against which borrowing decisions - including those negotiated with the IMF - may be assessed.
38. Further, that Article 211 governs borrowing power which must be authorised by an Act of Parliament and Parliament must be informed of loan terms and conditions. They argue that because debt binds future taxpayers, borrowing authority cannot be exercised solely by the executive branch.
39. The petitioners assail the IMF programme, which conditions disbursements on structural reforms including privatisation, as raising serious questions about compliance with Article 211 of the Constitution . Additionally, they argue that Articles 220 and 221 require that national budgets disclose borrowing proposals and anticipated public liabilities and, in this regard, they fault the IMF On-lent loan’ for violating Article 201(c) and (d) on intergenerational equity and prudent public finance management.
40. The petitioners further contend that the immunity clause does not extend to unconstitutional conduct, even assuming that the IMF enjoys certain immunities under the Bretton Woods Agreements Act , in view of the principle of constitutional supremacy under Article 2 is non-derogable.
41. They urge that under international law, immunities granted to international organisations are functional and are limited to acts necessary for the performance of their official functions, and are not absolute licenses to act with impunity, nor do they shield such organisations from scrutiny where their actions directly cause constitutional violations within a member state. Reliance was place don Jam et al. v. International Finance Corp. (US Supreme Court, February 27, 2019) , where the US Supreme Court ruled 7-1 in favour of a group of Indian farmers who sued the IFC, the private sector arm of the World Bank and held that international organisations are not entitled to absolute immunity and can be sued for their commercial activities and for actions that cause harm. Therefore, that by analogy, the IMF can be sued in cases where its activities have caused harm, including constitutional harm to local communities and the body politic.
42. It is argued that in this case, the 22 nd Respondent's actions in imposing conditionalities that violate Kenya's constitutional framework on public finance, sovereignty and national security constitute conduct that falls outside the scope of any legitimate immunity hence, this court is said to have jurisdiction to examine such conduct and to determine whether it is consistent with the Constitution.
43. On comparative constitutional reasoning supporting the supremacy of the Constitution over treaties, the petitioners rely on American constitutional commentary which recognises that treaty powers cannot be construed to destroy constitutional limitations or fundamental rights. They quote several authors including:
a. Thomas Jefferson who asserted the U.S. Constitution's supremacy over treaties when he wrote: "Our particular security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution." (Le
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