High Court Issues Temporary Orders Blocking National Infrastructure Fund

The High Court in Nairobi has stopped the government from proceeding with the National Infrastructure Fund after issuing temporary orders pending a constitutional challenge.

Justice Bahati Mwamuye, sitting at the Milimani Law Courts, barred state officials from taking any steps to establish or operationalise the fund until a petition questioning its legality is heard and determined. The case is set for hearing on 20 January 2026.

The petition was filed by Dr Margaret Gikenyi, J Benjamin, Eliud Matindi and two other applicants. They argue that the fund was created through a State House communiqué rather than an Act of Parliament, which they say breaches constitutional requirements governing public finance.

According to the petitioners, the Constitution requires all public funds to be established through legislation approved by Parliament. They contend that allowing the executive to create and manage such a fund without parliamentary oversight would weaken checks and balances in the management of public resources.

In granting conservatory orders, Justice Mwamuye restrained the Attorney General, the Cabinet Secretary for the National Treasury and other state actors from “establishing, incorporating, registering, operationalising, funding, or otherwise giving effect” to the fund until the court reaches a final decision.

A key issue raised in the case is the government’s plan to register the National Infrastructure Fund as a limited liability company. The petitioners argue that this structure could place public funds outside parliamentary scrutiny and beyond the normal audit mandate of the Auditor-General.

They warn that such an arrangement could reduce transparency and accountability in the use of public money. The petition describes the proposal as creating a parallel financial structure that operates outside established oversight systems.

Concerns have also been raised over proposals to use savings from the National Social Security Fund as seed capital for the project. Some legislators, including Kiharu MP Ndindi Nyoro, have opposed the plan, saying workers’ pension contributions cannot be redirected without parliamentary approval.

They argue that investing retirement savings in large infrastructure projects could expose contributors to financial risk and undermine the security of pension funds.

The government has defended the National Infrastructure Fund as a key pillar of its economic strategy. President William Ruto has said the fund is intended to reduce reliance on borrowing by attracting private investment into major development projects.