Why lobby group wants Infrastructure Act blocked

Just days after President William Ruto signed the National Infrastructure Fund Act, 2026, which seeks to anchor a Sh5 trillion fund for key projects, a petition has been filed at the High Court in Nairobi challenging its legality.

The lawsuit filed at Milimani High Court by Katiba Institute seeks orders blocking the operationalisation of the NIF Act, arguing the legislation was deliberately designed to shield billions of shillings in public funds from parliamentary oversight, exclude the Controller of Budget and deny Kenyans public participation, rendering it unconstitutional.

The lobby also seeks orders blocking the government from channelling Sh350.5 billion in privatisation proceeds from sale of Kenya Pipeline Company and Safaricom into what it terms an unconstitutional fund operating outside Kenya’s public finance oversight framework.

“Pending the hearing and determination of this Application, this honourable court be pleased to issue a conservatory order restraining the Respondents from taking any steps targeted at operationalising the National Infrastructure Fund Act, 2026,” the lobby group seeks.

“Pending the hearing and determination of this Application, this honourable court be pleased to issue a conservatory order restraining the Respondents from paying into the Fund, if already established, any proceeds of privatisation including the proceeds of the Kenya Pipeline Company listing and the Safaricom divestiture,” the petition further states.

In a certificate of urgency accompanying the petition, the lobby group argues that the Act was enacted without following the proper constitutional process of involving the Senate, yet it carves out exclusive county government functions and national resources to which counties are constitutionally entitled.

“The Constitution grants Parliament the power to pass legislation. That power, however, is not carte blanche. Legislation must comply with the Constitution. When a law, such as the National Infrastructure Fund Act, 2026, is enacted to defeat the Constitution, it is unconstitutional, and Article 2(4) mandates that this Court ensure it does not survive for a single day,” Katiba says.

At the heart of the petition  is Sh350.5 billion in privatisation proceeds already raised or approved by the government. Between February 19 and 24, the government sold a 65 per cent stake in the Kenya Pipeline Company, raising Sh106.3 billion. 

On March 10, just one day after the President assented to the Act, the National Assembly approved the sale of 15 per cent of the government’s 35 per cent Safaricom stake for Sh204 billion. 

It also approved the government’s plan to forego future dividends on its remaining 20 percent Safaricom ownership in exchange for an upfront payment of Sh40.2 billion, bringing the total Safaricom transaction to Sh244.2 billion, set to be concluded by March 31.

With at least ten more state corporations lined up for privatisation under the government’s 2026 Budget Policy Statement, Katiba Institute warns the financial stakes extend far beyond what has already been raised.

Katiba Institute, through lawyer Henry Gichana, also raises serious questions about the speed with which the Act was passed. According to court documents, the National Infrastructure Fund Bill was introduced in the National Assembly on February 12 and passed within three weeks, receiving presidential assent on March 9.

“It took the National Assembly a record three weeks, February 12 to March 6, 2026, to enact the law to regularize the Fund’s establishment and justify the intended subsequent exclusion of national resources from the Consolidated Fund,” the petition states.

The lobby argues the haste was deliberate, designed to regularise a fund whose establishment had already been legally challenged. 

In December 2025, the Cabinet had approved the fund’s establishment as a limited liability company, a move successfully challenged in a separate case filed by Nakuru doctor Magare Gikenyi, in which Katiba Institute participated as an interested party.  

The Cabinet Secretary for the National Treasury was subsequently compelled to admit on oath that he had “inadvertently” misled Parliament on the fund’s status.

Central to the petition is the argument that the National Assembly surrendered its oversight mandate by enacting the legislation.  

Katiba Institute Litigation Manager Emily Kinama, in a sworn affidavit, has described the entire arrangement as a calculated attempt to move public money beyond constitutional reach.

“The whole scheme appears to be targeted at diverting billions of taxpayer funds from the Consolidated Fund to a fund wholly run by the national executive outside the inconveniences of constitutional oversight and accountability,” Kinama stated.

Katiba Institute raises eight allege constitutional violations.   Chief among them is the exclusion of the Senate from enacting the Bill, which the petitioner argues qualifies as a Bill concerning county governments under Article 110(1)(a) and (c) of the Constitution because it covers electricity transmission, water reservoirs and irrigation, functions assigned exclusively to counties under the Fourth Schedule.  

The petition names the National Assembly as the first respondent, the Attorney General as the second respondent and the Cabinet Secretary for the Treasury CS as the third respondent. 

The Senate, the Controller of Budget and the Council of Governors are listed as interested parties.