Petitioners Seek Court Orders to Block Spending From National Infrastructure Fund

Petitioners have asked the High Court to stop the government from spending any money held in the National Infrastructure Fund.

The request came during hearings on a petition challenging the fund’s establishment. Activists and lobby groups want conservatory orders issued to freeze operations until the case concludes.

Kemunto Ateka and Frego Engineering Company Ltd lead the challenge. They argue the fund creates a route for public spending that bypasses constitutional structures, transparency rules and parliamentary approval.

Once funds are withdrawn and spent, recovery becomes nearly impossible, the court heard. The petitioners say resources in the fund include money meant for county governments, not just national use.

They highlighted potential inflows from the privatisation of Kenya Pipeline Company and planned Safaricom share sales. These could generate at least Sh400 billion that might move without Controller of Budget approval or full oversight.

Other petitioners include the Consumers Federation of Kenya (Cofek), Dr Magare Gikenyi, Eliud Matindi, Philemon Abuga and Dishon Keroti. They contend that setting up a public fund as a limited liability company violates Article 201 of the Constitution on public finance principles.

The petitioners also claim the fund threatens the Equalisation Fund by duplicating roles or diverting resources. They insist national public funds must arise through an Act of Parliament or the Public Finance Management Act, not the Companies Act.

Dr Gikenyi told the court the government has not disclosed clear administration details. This, he said, contradicts accountability and transparency requirements under existing finance laws.

The Attorney-General opposed the conservatory orders. State counsel argued the National Infrastructure Fund Act enjoys a presumption of constitutionality after parliamentary passage.

They noted the law came into force in March 2026 following public participation. Petitioners had chances to present views during that process, the State said.

Treasury Cabinet Secretary John Mbadi defended the fund in an affidavit. He described it as a financing tool for Kenya’s transformation agenda, covering food security, modern transport, energy expansion and digital economy growth.

Mbadi said the Cabinet wants the fund run with strong governance, a competitively recruited board and chief executive. The structure aims to mobilise over Sh5 trillion while maintaining efficiency, commercial discipline and fiscal responsibility.

The entity will operate as a limited liability company but retains its public character and statutory oversight, according to the CS.

Justice is expected to rule on the application for conservatory orders on July 23.

The case forms part of broader debate over how Kenya finances big infrastructure projects. The fund emerged as a vehicle to pool resources for national priority works.

Critics worry about reduced parliamentary control. Supporters see it as a practical way to attract long-term capital and deliver projects faster.

For now, no money can flow freely until the court decides on the interim relief. The main petition on the fund’s constitutionality will follow later.