The High Court has issued orders barring the government from establishing, incorporating, registering, operationalising, funding, or otherwise giving effect to the proposed National Infrastructure Fund pending the hearing and determination of the case.
Justice Bahati Mwamuye issued a conservatory order restraining the state whether acting jointly or severally, and whether directly or through their employees, agents, servants, or related entities, from taking any steps to implement the proposed fund.
The decision follows a petition filed by Nakuru-based surgeon Dr. Benjamin Gikenyi, Eliud Matindi and others, challenging the establishment of the National Infrastructure Fund through a presidential communiqué dated 15 December 2025.
The petitioners argue that the fund was created through executive fiat without parliamentary approval, public participation, or a clear legal framework, in violation of the Constitution of Kenya and the Public Finance Management Act.
According to court documents, they contend that Article 206(1)(a) of the Constitution only allows the establishment of a national government public fund through an Act of Parliament or under the Public Finance Management Act, and not through incorporation as a limited liability company under the Companies Act.
They argue that the executive action violates constitutional principles including sovereignty of the people, supremacy of the Constitution, rule of law, prudent use of public resources, transparency, accountability, and public participation as set out under Articles 1, 2, 10, 201, 206, and 232 of the Constitution.
Dr. Gikenyi further argues that the manner in which the fund was announced undermines Parliament’s oversight role and risks placing public resources outside established budgetary controls.
The petitioners also claim the fund could duplicate or interfere with constitutionally established mechanisms such as the Equalisation Fund under Article 204, while operating without clear safeguards on administration, accountability, or oversight by institutions such as the Controller of Budget.
The petition raises concerns that the fund was announced without disclosure of whether it would be limited by shares or guarantee, how it would be financed, or how public money would be protected, contrary to the Public Finance Management Act and its regulations.
In granting interim relief, Justice Mwamuye directed that the conservatory order would remain in force pending the inter partes hearing and determination of the application.
The court ordered the petitioners to serve the respondents and interested parties with the application, petition, and court order by 29 December 2025.
The respondents and interested parties were directed to file their responses by 9 January 2026. The petitioners may file a rejoinder and written submissions by 14 January 2026, while the respondents and interested parties are to file their submissions by 16 January 2026.
