Court clears way for Sh5 trillion National Infrastructure Fund

Kenya’s High Court has vacated temporary orders that prevented the government from establishing and operationalising the Sh5 trillion National Infrastructure Fund. The decision, delivered by Justice Bahati Mwamuye on Friday, follows a legislative breakthrough where the National Assembly passed the National Infrastructure Fund Bill on Thursday night.

The legal block had been in place since December 24, 2025, after petitions were filed by the Consumers Federation of Kenya (COFEK) and a group led by Dr. Magare Gikenyi. The petitioners argued that the executive was attempting to create a massive public fund through decree rather than through a constitutional legislative process.

Justice Mwamuye noted that the legal landscape shifted significantly with the passage of the Bill. He observed that when the initial stay orders were issued, no such legislation had been drafted or tabled. The court ruled that maintaining the freeze would be counterproductive, as the new Act now requires fresh consideration.

The National Infrastructure Fund is designed to move Kenya away from debt-heavy financing for major projects. The government intends to use the vehicle to pool resources for the construction of 2,500km of highway dualling, 28,000km of new roads, and approximately 50 mega dams across the country.

Funding for the Sh5 trillion ambitious program is expected to come from a mix of private capital and the strategic monetisation of mature state assets. This includes the planned divestiture of government stakes in entities such as Safaricom and the Kenya Pipeline Company to provide the initial seed capital for the fund.

While the lifting of the orders is a victory for the administration, the petitioners have been given until March 17 to decide whether to amend their petitions or file new challenges against the now-passed Act. Critics continue to raise concerns over the level of parliamentary oversight and the potential for executive overreach in managing the fund.

The Ministry of the Treasury is now required to submit an Investment Policy to the National Assembly within 90 days. This policy will outline exactly how the trillions of shillings will be allocated across transport, energy, and water sectors to ensure the projects meet national development priorities.