The High Court has declined to issue conservatory orders stopping the planned privatization of the Kenya Pipeline Company (KPC) in a petition filed by Busia Senator Okiya Omtatah.
In a ruling delivered at Milimani, Justice Mugambi held that it would be inappropriate to grant substantive interim orders at a stage when the matter had only been listed for mention. The court observed that key preliminary issues raised by the respondents — including questions of res judicata and jurisdiction — must first be determined before any conservatory relief can be considered.
The judge therefore declined to stop the privatization process at this stage and directed that the preliminary objection and the application for conservatory orders be heard together.
Senator Omtatah had moved to court under a certificate of urgency seeking to halt what he describes as an imminent and unconstitutional privatization process. He pointed to an Initial Public Offering (IPO) said to be nearing closure and argued that the sale of strategic public investments raises grave constitutional and economic concerns.
At the centre of the petition are broader questions about Kenya’s fiscal policy and the role of international lenders such as the International Monetary Fund. The senator questions whether external financiers can influence or “micromanage” the use of public funds and whether such entities can be subjected to the jurisdiction of Kenyan courts.
Supporting the application, constitutional lawyer Kibe Mungai urged the court to certify the matter as raising substantial questions of law under Article 165(4) of the Constitution and to empanel a multi-judge bench.
He submitted that decisions to dispose of public investments for short-term budgetary support could expose the country to long-term financial strain, arguing that public assets serve as a critical buffer for governments seeking alternative revenue streams beyond direct taxation.
The petition also challenges the process leading to the proposed privatization of certain state corporations, alleging inadequate public participation and lack of transparency.
The respondents opposed the application, maintaining that substantive orders cannot be granted at a mere mention stage. They further argued that some of the issues raised had previously been determined in related proceedings, leaving only the question concerning the IMF outstanding.
