Court halts implementation of National Infrastructure Fund pending hearing

The orders have been issued by Justice Bahati Mwamuye.

 The court granted a conservatory order restraining the Respondents, whether acting jointly or severally and whether directly or through their employees, agents, servants, or related entities, from taking any steps to implement the impugned fund.

The decision follows a case filed by  Nakuru based  surgeon Dr. Benjamin Gikenyi, Eliud Matindi and other who are   challenging the establishment of the National Infrastructure Fund through a presidential communiqué dated 15 December 2025. 

In his application, they 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, the petitioners 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 threatens 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 and purportedly approved undermines Parliament’s oversight role and risks placing public resources outside established budgetary controls. 

The Petitioners 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 also raises concerns that the National Infrastructure Fund was announced without disclosure of whether it is limited by shares or guarantee, how it would be financed, or how public money would be protected, contrary to the requirements of the Public Finance Management Act and its regulations. The petitioners argue that the lack of public participation and transparency renders the process unconstitutional and contrary to national values and principles of governance.

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 in both hard and soft copy, and to file an affidavit of service by 29 December 2025.

The Respondents and Interested Parties were directed to enter appearance and file their responses to both the application and the petition by 9 January 2026. The Petitioners were granted leave to file a rejoinder, if necessary, together with written submissions in support of the application by 14 January 2026, while the Respondents and Interested Parties are to file their written submissions by 16 January 2026.