https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11095

Ateka & 9 others v Cabinet Secretary for National Treasury & 11 others (Petition E158, E160 & E183 of 2026 & E834 & E835 of 2025 (Consolidated)) [2026] KEHC 11095 (KLR) (Constitutional and Human Rights) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11095 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E158, E160 & E183 of 2026 & E834 & E835 of 2025 (Consolidated) PM Nyaundi, J July 23, 2026 Between Kemunto Ateka 1st Petitioner Frego Engineering Company Limited 2nd Petitioner Wereh Kevin 3rd Petitioner Bernard Opere 4th Petitioner Katiba Institute 5th Petitioner Dr. Magare Gikenye B 6th Petitioner Eliud Karanja Matindi 7th Petitioner Philemon Abuga Nyakundi 8th Petitioner Dishon Keroti Mogire 9th Petitioner Consumers Federation Of Kenya (Cofek) 10th Petitioner and Cabinet Secretary For National Treasury 1st Respondent National Assembly 2nd Respondent Senate 3rd Respondent Attorney General 4th Respondent Controller Of Budget 5th Respondent Speaker Of National Assembly 6th Respondent and Kenya Bankers’ Association 1st Interested Party Capital Market Authority 2nd Interested Party Law Society Of Kenya 3rd Interested Party Commission On Revenue Allocation 4th Interested Party Okiya Omtatah 5th Interested Party Registrar Of Companies 6th Interested Party Ruling Background 1.Before court are five petitions, namely, Petition E 834 of 2025 Consumer Federation of Kenya (COFEK) v The Prime Cabinet Secretary & 7 others; Petition 835 of 2025 Dr. Magare-Gikenyi B & 3 others v The Attorney General & 6 others; Petition E 158 of 2026 Kemunto Ateka & 2 others v The Cabinet Secretary for National Treasury and Planning & 8 others; Petition E 160 of 2026 Benard Opere v Attorney General & 11 others and Petition E 183 of 2026 Katiba Institute v National Assembly & 5 others. 2.On 6th May 2026, Petition Nos. E158 of 2026; E 160 of 2026 and E 183 of 2026 were consolidated with Petition E 158 of 2026 being designated as the lead file. On 21st May 2026 Petition No. E 834 of 2025 and E 835 of 2026 were also consolidated with Petition No. E158 of 2026. Upon consolidation, the court directed that the 5th petitioner’s application dated 16th March 2026 be given priority. Summary of Application dated 16th March 2026 3.The application is presented under Rules 3(2), (3), (4) and (5), 19, 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) and Article 23 of the Constitution. It is supported by the affidavit of Emily Kinama sworn on 16th March 2026. 4.The application is seeking for orders that:a.Spentb.spentc.Spentd.Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from taking any steps targeted at operationalizing the National Infrastructure Fund Act, 2026.e.Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a conservatory order restraining the Respondents from paying into the Fund (if already established) any proceeds of privatization including the proceeds of the Kenya Pipeline Company listing and the Safaricom divestiture.f.Spent 5.The application is predicated upon the grounds that on 9th March 2026, the National Infrastructure Fund Act, 2026 (the Act) was assented into law. The Act violates the Constitution on six grounds. First, that the Act excluded the Senate despite touching on county functions and finances thereby contravening article 110(1) (a) and (c) of the Constitution. Second, the Act undermines Parliament’s exclusive constitutional mandate to pre-authorise and oversee all national expenditure including borrowing. 6.Third, the Act excludes the Controller of Budget from her constitutional mandate under Article 228(4) and (6) of the Constitution. The Fund activities including borrowing, are sought to be implemented outside the elaborate fiscal control and oversight framework established under the Constitution. Fourth, the threshold established under Regulation 207(1) (b) & (c) of the Public Finance Management (National Government) Regulations for the establishment of public funds has not been met thereby violating Article 201 (d) of the Constitution. 7.Fifth, the Act does not also align with the dictates of Article 201(b) (ii); it fails to indicate how infrastructural development under it will be implemented in an equitable manner. Sixth, the Act violates Article 201(1) because it does not make any provision for public participation in the selection and implementation of any of the projects under the Act or any of its processes. 8.It is contended that, it took a constitutional challenge in Dr. Magare-Gikenyi B & 3 others v Attorney General & 4 others (Petition E835 of 2025) to prevent the National Infrastructure Fund (Fund) established under the Act from being established as a limited liability company, which would have placed it outside constitutional and legal oversight. Further that since the process to liquidate State Assets, the proceeds of which were to be paid into this Fund, had already been set in motion, it took the National Assembly 3 weeks from 12th February to 6th March 2026 to enact the law to regularise the Fund’s establishment and justify the intended subsequent exclusion of national resources from the Consolidated Fund. 9.It is stated that between 19th and 24th February 2026, the Kenyan government sold a 65% stake of Kenya Pipeline Company (KPC), raising Kshs. 106.3 billion from the sale. On 10th March 2026, the National Assembly approved the sale of part of the government’s shares in Safaricom (15% of its 35% stake) to raise Kshs. 204 billion. The National Assembly also approved the government’s plan to forego receipt of future dividends on the balance of its Safaricom ownership (20%) in return for an upfront advancement of Kshs. 40.2 billion from the buyer. Cumulatively, this sale (and borrowing), set to be paid concluded by 31st March 2026, amount to Kshs. 244.2 billion. 10.In addition to this, at least ten other State Corporations are earmarked for privatisation. It is contended that the Kshs. 350.5 billion already raised, together with all the money to be raised from the privatisation of national assets, are planned to be channeled into the Fund and be utilized under the framework established under the Act. 11.The petitioner states that under Executive Order No. 2 of 2023, the President has established various ministries and departments with the mandate to implement infrastructure in the very sectors envisioned under Section 2 of the Act. Further that, Executive Order No. 1 of 2025, issued on 21st June 2025, recognised the wastefulness of duplicative public funds and declassified them, returning their functions to the relevant ministries. In direct contradiction, the impugned Act establishes a national Executive-controlled public fund to undertake functions already assigned to ministries and state departments under Executive Order No. 2 of 2023 12.It is the petitioner’s view that the entire scheme is designed to divert billions of taxpayer funds from the Consolidated Fund to a fund wholly controlled by the national executive outside the constitutional oversight and accountability. This undermines the Constitution, the rule of law, and devolution. 13.The petitioner asserts that it has established a prima facie case with likelihood of success; the petition raises substantive constitutional questions. The Public interest, balance of convenience and potential for irreversible harm all weigh in favour of preserving the substance of the petition by granting conservatory orders. 14.It is contended that unless the prayers sought are granted the petition shall be rendered nugatory because: rights will accrue and public resources be irrecoverably wasted by the setting up of the structures under the Act; billions of taxpayer funds, including the already raised, Kshs 350.5 billion will be diverted from the Consolidated Fund and applied outside the constitutional framework for expenditure and oversight; Counties will be locked out of sharing in the proceeds of the liquidation of national assets under Articles 201 and 202 of the Constitution among others. 1st, 2nd and 3rd petitioners’ response 15.The 1st, 2nd and 3rd petitioners place reliance on their application dated 9th March 2026. Their said application was presented under articles 22, 48, 159 and 259 of the Constitution; section 9(4) of the Fair Administrative Action Act and Rule 13 of the Mutunga Rules. 16.The application similarly seeks conservatory orders staying or suspending the coming into force and implementation of the Act in its entirety and specifically, the provisions of sections 3, 4, 5, 6, 8, 12, 18, 21, 24, 25, 26, 32 and 36 thereof. It is contended that the process leading to the introduction, discussion and assent of the Infrastructure Fund Bill (National Assembly Bill No. 1 of 2026) violated the Constitution and was inconsistent with existing legislation and devoid of meaningful public participation. 17.It is contended that the proceedings of the National Assembly and the Senate did not objectively consider the contents of the Infrastructure Fund Bill. Instead, they were tainted by misinformation, undue influence and concealment of all materials and relevant issues, as castigated by among others the 1st respondent. 18.The 1st, 2nd and 3rd petitioners claim that the contents of the Act violate the Bill of Rights and the provisions of the Constitution and the established legal framework on public debt, expenditure of public resources, investment of public funds and the management of public institutions. Particularly articles 1, 2, 3, 10(1), (2), 27, 35, 43, 56, 94, 96, 114, 131, 153, 201, 205, 206, 211, 228, 232 of the Constitution. 19.It is pleaded that had meaningful public participation and concurrence with the Senate House been conducted, it would have established among others that the establishment of the Fund ought to have been made within the framework of the Consolidated fund; the establishment of the Fund violates the Constitution and the Public Finance Management Act (PFMA) and the framework of the Fund ought to have been established as an investment fund regulated by the Capital Markets Authority. 20.The 4th to 10th petitioners did not file formal responses to the application 1st and 4th respondent’s response 21.The 1st and 4th respondents opposed the motion through grounds of opposition dated 7th April 2026. It is contended that, the motion does not meet any of the established criteria for issuance of conservatory orders; the Act enjoys legal presumption of constitutionality that ought not be rebutted at an interlocutory stage of proceedings and that to the extent that there is no claim for violation of any provision of the bill of rights chapter of the Constitution the court lacks jurisdiction to issue the conservatory orders which is only provided for in Article 23 (3) (c) of the Constitution. 22.It is urged that, the Regulations cannot supersede the provisions of a statute as proposed by the petitioner; the standing orders of Parliament provide sufficient public participation in the legislative process and no breach has been shown. Further, the Act does not concern counties; it arose from a Money Bill and concurrence did not also arise during the enactment process. 23.It is claimed that the Act is national in scope and that an Act of Parliament cannot be invalidated merely for inconsistency with another statute. It is denied that there is any conflict between the provisions of the Act and the PFMA as alleged or at all. In any event, any conflict between statutes is resolved through interpretation. 24.It is asserted that the National Assembly has constitutional discretion in determining regulatory frameworks and cannot be compelled to legislate in a particular manner. In addition, constitutional offices operate independently of statutory mention it would therefore be superfluous to provide for the Office of the Controller of Budget in all legislation as proposed. In addition, oversight powers of Parliament are constitutional and cannot be ousted by statute. 25.It is contended that the Act merely establishes a financing framework and does not amount to unconstitutional borrowing; borrowing is permitted under Article 211 of the Constitution. County revenue remains unaffected, and constitutional obligations are subject to progressive realization. Further, that policy implementation is an executive function. 26.It is pleaded that even if parts of the Act are unconstitutional, the doctrine of severability applies, and the entire Act should not be struck down on that account alone. Further, the Petition is premised on many premature and speculative claims. 2nd and 6th respondents’ response 27.The 2nd and 6th respondents opposed the application through replying affidavit sworn by Samuel Nkoroge, C.B.S 8th April 2026. It is asserted that the National Infrastructure Fund Bill, 2026 met the public participation requirements under article 118 (1) (b) of the Constitution and Standing Order 127(3). The Bill was advertised in print media, memoranda invited, and county public hearings held in Five Counties; Homabay, Mombasa, Kilifi, Kwale and Nairobi. In addition, Stakeholders and experts were formally invited through letters dated 18th February 2026 and gave submissions in a public participation forum on Wednesday, 25th February 2026. 28.It is stated that some of the stakeholders invited included Hon. FCPA John Mbadi Ng’ongo, EGH – Cabinet Secretary, Ministry of National Treasury and Economic Planning; Dr. Chris K/ Kiptoo, CBS- Principal Secretary, the National Treasury; Hon. Dorcas Oduor, OGW, EBS, SC-Attorney General; Hon. Shadrack John Mose, CBS -Solicitor General among others. 29.It is further stated that the Committee reviewed memoranda, conducted clause-by-clause analysis, and incorporated amendments based on public input. The memoranda were received from Bunge la Mwananchi; Institute of Certified Public Accountants of Kenya (ICPAK); Katiba Institute; Institute of Public Finance; Controller of Budget among others 30.The Bill was tabled in the House on 3rd and 4th March 2025, when it was read a Second Time and committed to the Committee of the whole House. On 5th March 2026, the Bill was read a Third Time in the National Assembly when the committee of the Whole House considered the Bill clause by clause as well as all the proposed amendments to the Bill. On 9th March 2026, the president of the Republic of Kenya, assented the Bill into law as the National Infrastructure Fund Act, 2026. 31.The 2nd and 6th respondents cite article 109, 110(3) and 114 of the Constitution, to contend that the Bill was correctly passed as a money Bill without Senate concurrence because it does not affect the functions and powers of county governments under the Fourth Schedule to the Constitution. They maintain that Act’s purpose under section 4 of the Act to accelerate national infrastructure development, mobilise private and alternative funding, reducing debt reliance, and strengthening national capacity for complex projects fall exclusively within national government functions under article 186 and paragraphs 22(c), 22(d), and 31 of Part I of the Fourth Schedule. 32.It is emphasized that the Act establishes a framework of checks and balances between the National government and the National Assembly. The Board is mandated to prepare the Investment Policy, which must first be approved by the Cabinet Secretary and then submitted to the National Assembly for multi-stage approval under sections 25, 26 and 28 of the Act. The National Assembly must also ensure compliance with constitutional requirements, including public participation, before approval. 33.Further, the Committee’s report recommended amendment of the Bill to require National Assembly approval of the Investment Policy, thereby safeguarding public participation. Additionally, section 48 authorizes the Cabinet Secretary to issue regulations, including standards and procedures for participation. The Act thus provides adequate avenues for public involvement, since the National Assembly is mandated to conduct public participation when considering the Investment Policy. 34.It is contended that the Act protects the oversight role of the National Assembly. This is because it establishes a framework of checks and balances between the Executive and the National Assembly, ensuring oversight in the formulation and implementation of the Investment Policy. Under Sections 26 and 28, the Executive is mandated to prepare the policy, while the National Assembly must scrutinize, approve, amend, or decline it before implementation. Section 35 further requires the Cabinet Secretary to submit financial reports on the Fund to the Assembly. The Act therefore incorporates mandatory, multi‑stage approval processes that align with Article 95(b) of the Constitution, empowering the National Assembly to oversee State Organs. 35.It is asserted that the Act does not oust the mandate of the Controller of Budget because section 42 of the Act recognises her role in approving the withdrawal of public funds. The provision makes it clear that the Controller of Budget shall exercise oversight over the Fund by authorising only those withdrawals intended for the establishment of the Fund, as set out under section 4 of the Act. She therefore retains a central role in ensuring that withdrawals from the Fund are lawful and constitutionally compliant. 36.It is urged that the Act promotes public finance principles and equitable development by establishing a specialised national fund to mobilise resources from non‑traditional sources, thereby reducing reliance on public debt and strengthening national capacity to execute large‑scale infrastructure projects. The objectives of the Fund are aligned with Articles 10 and 201 of the Constitution and the Act is anchored in Article 206, section 24 of the PFMA, and Regulation 207 of the Public Finance Management (National Government) Regulations. 37.It is asserted that the Fund was properly proposed by the Cabinet Secretary, approved by the Cabinet, and enacted in compliance with constitutional and statutory requirements. Allegations that presidential appointments to the Governing Council undermine public finance principles are misguided, since the Council’s role is limited to policy direction without control over implementation. In addition, the Act requires that investment policies adhere to equitable expenditure principles under Article 201(b)(ii), and the claim that the Act fails to provide for equitable development or marginalised groups is speculative. 3rd respondent response 38.The 3rd respondent has opposed the application through replying affidavit sworn by Jeremiah Nyegenye, CBS on 2nd April 2026 and grounds of opposition dated 20th May 2026. It is contended that the question as to whether the National Infrastructure Fund Bill, 2026 concerned county governments, during the process of enactment did not arise between the Speakers of the Houses of Parliament. The Memorandum and Objects of the bill provides that it does not concern county governments since it does not affect functions of county governments. It therefore ought to have been considered only by the National Assembly. 39.It is contended that section 38 of the Act provides the source of the funds. The funds of the Fund comprise of expenditure of public funds and is thus a Money Bill within the meaning of article 114 of the Constitution. The participation of Senate was therefore also not required. 40.It is contended that the threshold for grant of conservatory orders set in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR has not been met. The application and petition are an affront to legislative mandate under Articles 94, 96 and 109 of the Constitution. 41.Under section 4 of the Act one of the purposes of the Fund is to accelerate the development of the national infrastructure and to reduce the reliance of public debt for financing of commercially viable infrastructure investments. It is not the public interest for the government to expedite national infrastructure development while redoing public debt to finance commercial investments. The orders sought are therefore against public interest. 42.It is asserted that the petitioner has not demonstrated any prejudice that will be suffered should the conservatory orders not be issued. Thus, the petition should be dismissed. 5th respondent’s response 43.The 5th respondent has supported the application through a replying affidavit sworn by FCPA Dr. Margaret Nyakang’o on 28th April 2026. She cites articles 228, 225 (7), 252((1) (a), 252(1) (b) and 248 of the Constitution, and section 39 (8) of the PFMA, Section 5 (b) and (d) of the Controller of Budget Act, 2016 that speak to her establishment and mandate. It is contended that the establishment of a national Public Fund is guided by section 24(4) of the PFMA and is further subject to compliance with PFM Regulatory framework under section 24 and Regulations 207-209 of the Public Finance Management (National Government Regulations) 2015. 44.It is contended that the Fund is created under article 206(1) of the Constitution as a public fund. Its establishment outside the consolidated fund is a diversion of significant public resources in the form of privatisation proceeds to the Fund and subjects these resources to minimum oversight. The establishing institutions to manage functions that are domiciled in counties and national governments ministries, violates articles 201 of the Constitution and Regulation 207(b) and (c) and 207(1) of the PFM (National Government) Regulations. 45.It is contended that whereas article 206(1) of the Constitution as read with section 24 of the PFM Act and Regulation 207-209 of the PFM (National Government) Regulations provide for the establishment of other public funds, the establishment of such fund should not be inconsistent with the Constitution. Article 228(4) of the Constitution provides for Controller of Budget’s oversight and approval for withdrawal of funds established under article 204, 206 and 207. 46.It is thus contended that the failure to expressly provide for Controller of Budget’s approval for withdrawals from the Fund is an ouster of the Controller of Budget’s constitutional mandate to approve withdrawals from public funds established under article 206(1) of the Constitution. Further that article 228(5) provides that the Controller of Budget shall not approve any withdrawal form a public fund unless satisfied that the withdrawal is authorised by law. 47.It is contended that whereas section 42 of the Act provides that withdrawals from the Fund shall be in accordance with article 228(5), the said article does not operate in a vacuum but is triggered by Controller of Budget’s mandate under article 228(4), which the Act disregards. It is emphasised that Controller of Budget’s role is crucial because the Fund is created to undertake functions that should ideally be funded from the consolidated fund. In addition, the substantial resources intended to be ring-fenced by the Fund would require controls, that the Constitution already secured by establishing the office of the Controller of Budget. 48.That in ensuring fiscal transparency and accountability as sanctioned by article 201 and 228 (6) of the Constitution, the Controller of Budget’s reporting role entails preparing quarterly, annual and special reports to the Legislature and Executive on budget implementation matters of the National and County Governments. Section 35 of the Act defeats these provisions by providing for quarterly and annual reports to the Cabinet secretary. This further violates sections 164 and 166 of the PFMA. 49.The 5th respondent states that section 19(2) (a) as read with section 31(2) of the Act permit borrowing without pre-approval by Parliament. Similarly, section 34 of the Act gives powers to the Cabinet Secretary to issue Government Support measures including guarantees, letters of credit, partial guarantees and political risk insurance. These instruments carry direct fiscal implication and may create contingent liabilities for the Government., thereby undermining article 211 of the Constitution and the PFMA and Recording and reporting of contingent liabilities. 50.The 5th respondent urges this court to find that the Act is unconstitutional for its mandate; violating the public finance principle of prudent utilisation and clear reporting, openness, and accountability in financial matters as espoused in article 201 of the Constitution and exposes the National government to contingent liabilities by failing to adhere to article 211 of the Constitution. 1st interested party’s response 51.The 1st interested party filed replying affidavit by Ralmond Molenje sworn on 20th May 2026. It supports the establishment of lawful and constitutionally compliant mechanisms capable of mobilising long-term infrastructure financing while reducing unsustainable pressure on public debt. Those mechanisms must however operate within the Constitutional framework, particularly articles 10, 73, 201, 206, 228 and 232. 52.It is contended that while statutes enacted by Parliament enjoy a presumption of constitutionality, such presumption does not displace the obligation of a statutory framework to remain consistent with constitutional safeguards governing public finance and institutional accountability. 53.It is contended that the issues raised by the petitioners disclose substantive constitutional questions touching on public finance governance, institutional accountability and legislative design which warrant careful judicial scrutiny to ensure that the operationalization of the Fund remains constitutionally compliant. 54.The 1st interested party with regard to governance structures, notes that the legitimacy and effectiveness of sovereign backed investment vehicles substantially depend on institutional independence, professional competence, transparent appointment and adequate accountability safeguards. 55.Citing sections 6 and 7 of the Act, it is opined that the requirement for relevant professional experience should include structured participation or nomination mechanisms involving recognized professional and financial sector institutions in order to guarantee technical competence in project finance, capital markets, infrastructure financing and fiduciary governance. In the absence of adequate professional oversight safeguards, sovereign investment vehicles risk exposure to politicization, governance instability, weak investment discipline and diminished investor confidence. 56.It is observed that comparative infrastructure funds such as India’s National Investment and Infrastructure Fund (NIIF) have achieved investor confidence through professionally managed structures involving independent fund managers, institutional governance safeguards, transparent investment frameworks and mixed public private oversight mechanisms. The 1st interested party contends that the oversight mandate of the Controller of Budget under article 228 of the Constitution constitutes a central safeguard in Kenya’s public finance architecture and should not be undermined rendered ineffective through statutory design. Any interpretation or operational framework adopted under the Act ought therefore to preserve meaningful constitutional oversight over withdrawals, expenditure authorization and accountability mechanisms involving public resources. 57.Further, the constitutional requirement under article 206 that all money raised or received by or on behalf of the National government be paid into the Consolidated Fund raises important constitutional considerations requiring careful reconciliation with the operational framework established under the Act. It is emphasized that strict adherence to constitutional legislative procedures is itself a fundamental component certainty, institutional legitimacy, institutional comity and investor confidence. 58.It is asserted that Infrastructure financing frameworks intended to mobilize long-term domestic and international capital must rest upon demonstrably lawful and constitutionally secure foundations capable of withstanding future legal and institutional uncertainty. Further, section 40(4) of the Act, which permits the Fund to operate bank accounts in commercial banks for investment and operational purpose, constitutes an important operational provision within the broader financial system. 59.It is pleaded that while section 40(1) provides for the holding of core funds at the Central Bank of Kenya, the operational flexibility to utilize commercial banking institutions remains necessary for project level transaction management, investment operations, financial intermediation and integration with domestic and international financial markets. This is because commercial banks play a critical intermediary role in infrastructure financing through syndicated lending, project finance administration among others. 60.In its view, the 1st interested party opines that requiring all operational transactions to be conducted exclusively through purely administrative public finance structures may impede commercial responsiveness and undermine the flexibility required in modern blended finance arrangements. It is however urged that the participation of commercial banking institutions in the Fund’s operational framework must remain subject to strict regulatory supervision by the Central Bank of Kenya together with transparent audit and reporting obligations. 61.The 1st interested party relies on the decision in Institute for Social Accountability & another v National Assembly & 5 others [2022] KESC 39 (KLR) and urges this court in determining the Constitutionality of the Act, to consider whether any impugned provisions are severable. 62.The 2nd to 6th interested parties did not file formal responses to the application. Summary of the 5th Petitioner/ Applicant’s submissions 63.The petitioner cites the decisions in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] KEHC 4297 (KLR) for the law on conservatory orders. It further cites the decision in Kevin K Mwiti & others v Kenya School of Law & others [2015] KEHC 2788 (KLR); Mwenje & 18 others v Cabinet Secretary for Defence & 2 others [2025] KEHC 14491 (KLR) and Okiya Omtatah Okoiti v Kenya Railways Corporation (Petition E 843 of 2025) for the contention that it has established several arguable or triable constitutional questions in its application. 64.Among the issues distilled as arguable are, whether by including electricity transmission and distribution infrastructure, water reservoirs as well as irrigation and agribusiness infrastructure in the definition of the national infrastructure that is the subject of the Act under section 2 of the Act violates articles 6(2), 189(1) and 186(1) as read with paragraphs 8(e), 11 and 1 of the Fourth Schedule of the Constitution. 65.The other triable issue is whether by excluding counties from sharing in the proceeds of privatization as well as proceeds from the sale of shares in government linked corporations, sections 38(a) & (b) and 49 of the Act violate articles 201 (b) (ii), 202 (1) and 175(b) of the Constitution. Further reliance is placed on the Supreme Court decision in Dock Workers Union & another v Portside Freight Terminals Limited & 10 others [2024] KESC 35 (KLR). 66.Regarding the petition being rendered nugatory, Katiba Institute relies on the decision Dari Limited & 5 others v East African Development Bank [2023] KESC 90 (eKLR) for the contention that what is sought to be stayed in this case is not reversible because: rights will accrue and public resources be irrecoverably wasted by the setting up of the parallel structures envisioned under the Act; Billions of shillings of taxpayer funds, will have been diverted from the Consolidated Fund and applied outside the constitutional framework for expenditure and oversight; Counties will have already been locked out of sharing in the proceeds of the liquidation of national assets among others. 67.It is thus contended that if the substratum of the petition is not preserved, it risks becoming nugatory as the sale of assets and shares in government owned enterprises may not be reversed and the proceeds of the sale stand to be paid into the Fund established under the Act as opposed to the Consolidated fund opening up to potential misuse. Any remedies issued at judgment will be in vain. 68.The petitioner relies on the Munya case, the Omtatah case and the decision in Law Society of Kenya v Attorney General & another [2020] KEHC 1702 (KLR) that devolution, parliamentary control over public funds, legality of public expenditure, equitable development, transparency and accountability, public participation and responsible use of resources as well as intergenerational equity are the constitutional principles at stake in this petition; constituting foundational pillars upon which Kenya’s constitutional democracy rests and development cannot be pursued at their expense. 69.Accordingly, it is argued that public interest lies in upholding: the reasonableness test for the establishment of public funds under article 206(1) (a); the constitutional entitlement of the two levels of government to an equitable share of revenue raised nationally; the role of the national assembly in budgetary pre-authorisation and financial oversight; the role of Controller of Budget among others. 70.The petitioner relies on the Omtatah case for the contention that there is no prejudice to be suffered if the operationalization of the Act and the establishment of the Fund is halted. It is urged that the public interest and balance of convenience, therefore, lies in the grant of conservatory orders. It relies on the decision in Mohamed & 6 others v County Assembly of Wajir & 9 others [2022] KEHC 169 (KLR) and urges that the application be allowed. Summary of the 1st and 4th respondents’ submissions 71.The 1st respondent and 4th respondents cite the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR on the threshold for conservatory orders. The 1st respondent further cites the decision in Law Society of Kenya v Attorney General & 2 others [2013] eKLR for the contention that burden of proof is on an applicant seeking to stay the operation of a statute is significantly higher than in a regular civil suit owing to the presumption of validity. The petitioner has not demonstrated a prima facie case that rebuts this presumption. 72.It is argued that the allegations that the Act was fast tracked do not constitute a constitutional infirmity; the National Assembly has the sovereign discretion to regulate its own timelines under article 124. The legislative intent was to regularize the fund, an act that demonstrated respect for, rather than a violation of, the rule of law. 73.It is submitted that public interest in this case is synonymous with the implementation of the Fund. The proceeds in question Kshs. 350.5 billion are earmarked for critical national infrastructure that is vital for the progressive realization of socio-economic rights under article 43. Hence, suspending the Act would not only paralyse the government’s development agenda but also cause irreversible economic damage. Reliance is placed in the decision in Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others; Bhatia (Amicus Curiae) [2024] KESC 63 (KLR) for the contention that granting the orders here would lead to an economic stalemate. 74.Regarding the petition being rendered nugatory, it is urged that the court possesses sufficient remedial powers, including the power to order an accounting or restitution, should the Act be found unconstitutional at the final hearing. It is further argued that no evidence has been supplied to demonstrate that if the funds are channeled to the Fund, they will vanish or that there is a direct violation of the Bill of Rights that will necessitate this court’s intervention under article 23. 75.The 1st and 4th respondents rely on the decision in Centre for Human Rights and Democracy & 2 others v Judges and Magistrates Vetting Board & 2 others; Ibrahim & another (Interested Parties) [2012] KEHC 5431 (KLR) and urge for the dismissal of the application. Summary of the 2nd and 6th respondents’ submissions 76.It is submitted that the petitioner has not demonstrated the existence of a prima facie case with a probability of success because the Act was passed after extensive public participation and stakeholder involvement. The Act complies with the public finance framework under article 201, 206, 207 and 221-223 of the Constitution and section 24 of the PFMA. 77.Substantively reiterating the content of its replying affidavit, it is maintained that the Act establishes a framework of checks and balances between the national government and the National Assembly under sections 26, 28 and 35 of the Act. It is contended that the Act is currently in force as the sole framework governing the establishment, operations and management of the Fund. Its suspension will therefore cause confusion and a lacuna in the management and operation of the Fund. Reliance is placed on Cabinet Secretary Ministry of Health v Aura & 13 others [2024] KECA 2 (KLR); National Assembly of Kenya v Kina & another [2022] KECA 548 (KLR); Cabinet Secretary for the National Treasury and Planning & 4 others v Okoiti & 52 others [2024] KESC 47(KLR) and In Reference re Manitoba Language Rights [1992] 1 S.C.R. 212 and Phumelela Maunganai & 9 others v the State & Anor [2018] ZACC 45. 78.In conclusion, it is asserted that the petitioner does not allege any violation of its fundamental rights and freedoms. The argument that the Act was made outside the legal framework for establishment of public fund is flawed in light of Article 201 of the Constitution and Section 24 of the PFMA. Reliance is placed on National Treasury & 5 others v Opposition to Urban Tilling Alliance & 4 others [2012] ZACC 18 and it is urged that the application be dismissed with costs. Summary of the 3rdrespondent’s submissions 79.The 3rd respondent cites the decision in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR for the ingredients to be met in seeking orders for conservatory orders. It is submitted that the petitioner has not met the test for prima facie case with a likelihood of success. The Act was passed in accordance with the Constitution. The petitioner has not demonstrated how the Act violates the provisions of the Constitution and bill of rights under the Constitution. Reliance is placed on Mrao v First American Bank Kenya Limited & 2 others [2003] eKLR. 80.It is submitted that the petitioner has not demonstrated how it will suffer prejudice if the conservatory orders are not issued. On the contrary, members of the public stand to suffer prejudice if they are granted as they would paralyse government operations creating economic uncertainty. The 3rd respondent relies on the decision in Centre for rights Education and Awareness (CREAW) to submit that the petitioner has not demonstrated the rights that have been denied, violated or infringed or threatened. 81.It is asserted that the allegation that the counties will be locked out of sharing in the proceeds of the liquidation of national assets is unfounded. Further that the grant of the conservatory orders will in effect determine the issue of constitutionality of the Act before full hearing of the matter. Reliance is placed on the decision in Adrian Kamotho Njenga v Selection Panel for the Appointment of Commissioners of the Independent Electoral and Boundaries Commission (2021) & 2 others; Independent Electoral and Boundaries Commission [2021] eKLR and Susan Wambui Kaguru & 4 others v Attorney General & another [2012] eKLR. 82.The 3rd respondent submits that the orders sought in the application are contrary to public interest and urges for its dismissal with costs. Analysis And Determination 83.Having considered the pleadings and submissions herein, the sole issue for determination is; Whether the application meets the threshold for issuance of conservatory orders? 84.Conservatory orders are vital temporary measures in Public Interest Litigation, designed to preserve the status quo. The Court in Invesco Assurance Co v MW (Minor suing thro' next friend and mother (HW) [2016] KEHC 5318 (KLR) defined Conservatory orders as follows:“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 85.The Supreme Court discussed the nature of conservatory orders in Munya v Kithinji & 2 others [2014] KESC 30 (KLR) as follows: -“Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” 86.They are issued in the exercise of the Court’s discretion, a discretion that must be guided by well-established principles. The Court in Nkunja v Magistrates and Judges Vetting Board & another [2016] KEHC 7269 (KLR) summarized three main principles for consideration when dealing with such applications as follows:“a.An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; andThe public interest must be considered before grant of a conservatory order.” 87.Likewise, in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] KEHC 2174 (KLR) the Court stated that:“ 25.Foremost, the applicant ought to demonstrate a prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice…. 26.It is in my view not enough to merely establish a prima facie case and show that it is potentially arguable. Potential arguability is not enough to justify a conservatory order but rather there must also be evident a likelihood of success. The prima facie case ought to be beyond a speculative basis…. 28.Once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success the court is then to decide whether a grant or a denial of the conservatory relief will enhance the Constitutional values and objects of the specific right or freedom in the Bill of rights…. 29.Thirdly, flowing from the first two principles, is whether if an interim Conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure so far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice…. 30.The fourth principle which emerges from the various cases and is well captured by the Supreme Court of Kenya in the case of Gatirau Peter Munya –v- Dickson Mwenda Githinji & 2 Others [2014] eKLR is that the court must consider conservatory orders also in the face of the public interest dogma. 31.Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicants credentials, the prima facie correctness of the availed information, whether the grievances are genuine legitimate and deserving and finally whether the grievances and allegations are grave and serious or merely vague and reckless.” 88.In Free Kenya Initiative & 6 others v Independent Electoral & Boundaries Commission & 4 others; Kenya National Commission on Human Rights (Interested party) [2022] eKLR Mrima J, stated: -“ 26.The above principles are, however, not exhaustive. Depending on the nature of the matter under consideration, there may be other parameters which a Court ought to look into. Such may include the effect of the orders on the determination of the case, whether there is eminent danger to infringement of the human rights and fundamental freedoms under the Bill of Rights, the applicability of the doctrine of presumption of constitutionality of statutes, whether the Applicant is guilty of laches, the doctrine of proportionality, among many others.” 89.The first condition to be met therefore is that the applicant must establish that they have a prima facie case. The Court in Mrao vs. First American Bank of Kenya Limited & 2 Others (2003) KLR 125 defined a prima facie case to mean:“…. In a civil application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.” 90.In Okoiti & 2 others v Kenya Railways Corporation & 9 others; Sikalieh (Suing on Behalf of Karen Langata District Association) & 2 others (Interested Parties) [2026] KEHC 3862 (KLR), the Court addresses its mind on prima facie case as follows; 90.The concept of a prima facie case in constitutional litigation was further elaborated by this court in Mwenje & 18 others v Cabinet Secretary for Defence & 2 others [2025] KEHC 14491 (KLR), where it was held that an arguable prima facie case is one that discloses triable and arguable issues of a nature that calls for response or rebuttal, and which have a likelihood of success that is not remote or far removed from the natural progression of the petitioners’ arguments. This court adopts that formulation. 91.In David Ndii & others v Attorney General & others [2021] eKLR, the Court had the following to say about a prima-facie case: -“ 45.The first issue for determination in matters of this nature, is whether a prima facie case has been established and a prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, it has to be shown that a case which discloses arguable issues has been raised and, in this case, arguable constitutional issues.” 92.The Petitioners herein argue that they have satisfied the requirement as the Petition raises substantial constitutional questions including, whether or not the Act complies with the Fourth Schedule of the Constitution on distribution of functions between the National and County Government, whether the Act , whether the Act complies with the Constitutional imperatives of management of public finances, whether the Act ousts the jurisdiction of the Controller of Budget, whether the Act contravenes constitutional oversight responsibility of the National Assembly. The respondents in opposition counter that the Petition lacks merit even from a plain reading of the statute. The statute enjoys a presumption of constitutionality. 93.I am mindful that, at this preliminary stage, the Court is not required to undertake a definitive determination of the merits of the challenge mounted against the establishment of the Fund under the impugned statute. The inquiry is confined to whether the Petitioners have disclosed a prima facie, arguable case warranting full consideration at the substantive hearing. The Petitioners contend that the Fund, as structured under the Act, offends various provisions of the Constitution and have articulated specific grounds of alleged constitutional infirmity. 94.Without pronouncing on the ultimate validity of those claims, I am satisfied that the issues raised, touching on the constitutionality of the statutory framework, the scope of legislative authority, and the alleged derogation from constitutional safeguards, are neither frivolous nor insubstantial. They present bona fide questions that properly fall within the Court’s mandate under Articles 22, 23 and 258 of the Constitution to interrogate the constitutionality of legislation. I am therefore persuaded that the Petition meets the threshold of an arguable constitutional petition. 95.The second inquiry is whether the Petition risks being rendered nugatory absent conservatory intervention. The Petitioners seek to halt the operationalisation of the Fund and restrain any deposits into or out of it, arguing that substantial sums are poised for transfer and that, as presently structured, the Fund operates outside constitutional safeguards. They contend that allowing continued implementation of the statute will irreparably compromise accrued constitutional rights and undermine the efficacy of any eventual judgment. The Respondents counter that the Act has already been operationalized: proceeds from the privatisation of the Kenya Pipeline Company have been deposited, and further proceeds from the sale of Safaricom shares are scheduled for deposit. They argue that interim relief cannot arrest what has already occurred. The Court must therefore assess whether the ongoing and anticipated deposits constitute a continuing process capable of restraint, and whether the absence of conservatory orders would deprive the Petition of practical meaning. The nugatory inquiry, properly understood, focuses not on past acts but on whether continued implementation of the impugned statutory framework would render the Court’s final orders hollow. 96.On irreparable damage in Law Society of Kenya v Attorney General & another [2020] eKLR the court held as follows:“ 70.Generally, any infringement or threat to infringement of the Constitution is an affront to the people of Kenya. That is the clear purport of the Preamble and Chapter 1 of the Constitution. In this matter the gist of the Petition is the constitutionality of Section 5 of the Public Order Act. Before this Court pronounces itself on the Petition, the Petitioner has preliminarily demonstrated that the Constitution is under attack. In the unique circumstances of this matter I find that the general public stands to suffer great prejudice if the Constitution is not allowed to reign. 97.In Dari Limited & 5 others v East African Development Bank [2023] KESC 90 (KLR) the court stated;“ 32.On the nugatory aspect, the concern is whether what ought to be stayed is allowed to happen is reversible, or not...” 98.Having considered the rival arguments and the applicable judicial precedents, I am persuaded that, absent the Court’s intervention at this juncture, the Petition risks being rendered academic and therefore of no practical consequence. The statutory scheme at issue contemplates ongoing and substantial financial transactions, some of which have already occurred and others that are imminent. If those processes continue unchecked while the constitutional questions raised remain unresolved, the Petitioners’ challenge may be overtaken by events in a manner that deprives the Court’s eventual determination of meaningful effect. The conservatory jurisdiction exists precisely to prevent such an outcome, to ensure that the Court’s final orders, if merited, are not reduced to hollow declarations incapable of redressing the alleged constitutional harm. I find therefore that the application satisfies the second criteria. 99.The final consideration is whether it is in the public interest to issue the conservatory orders. The same was described by the Court of Appeal in Nairobi Civil Appeal No. 364 of 2017; Tom Mboya Odege vs. Edick Peter Omondi Anyanga & 2 others (2018) eKLR as follows:“...Taken to its logical conclusion, it would mean that no costs of election petitions should be made by any court since they are matters of public interest. The appellant did not assist us with the definition of 'public interest', but Black's Law Dictionary refers to "Public Interest Litigation" as:"a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected". 100.The court further held,“ 35.The best examples are in Articles 22(2) (a) and 258 of the Constitution which grant every person the right to move the court in the 'public interest' where there is a claim or alleged contravention or infringement of a right or fundamental freedom, or threat thereto, or a contravention or threat to violate the Constitution.” 101.The Court is required to approach the public‑interest inquiry with constitutional fidelity and analytical restraint. In Law Society of Kenya v Attorney General & Inspector General of National Police Service [2020] KEHC 1702 (KLR), the Court affirmed that, “there can be no greater public interest than upholding the Constitution and the law.” 102.That principle highlights that constitutional compliance is the apex public‑interest consideration. The Petitioners argue that continued operationalisation of the Fund, absent constitutional safeguards, risks undermining that paramount interest. The Respondents, however, contend that halting the Fund’s activities will create a lacuna and delay public benefits associated with the intended projects. The Court of Appeal in Cabinet Secretary Ministry of Health v Aura & 13 others [2024] KECA 2 (KLR) underscored that, in granting conservatory orders, the Court must consider “the impact of those orders.” That impact assessment requires a careful balancing of the asserted public benefits against the constitutional concerns raised.. 103.Further, the separation‑of‑powers caution articulated by the South African Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18 is instructive. The Court warned that, when evaluating the balance of convenience,“a court must recognise that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive or Legislative branches of Government. It must assess carefully how and to what extent its interdict will disrupt executive or legislative functions… Whilst a court has the power to grant a restraining order of that kind, it does not readily do so except when a proper and strong case has been made out for the relief and, even so, only in the clearest of cases.” 104.That guidance resonates here. The Petition raises weighty constitutional questions, but the statutory scheme also contemplates ongoing public‑interest projects. A complete halt would intrude significantly into executive functions and risk creating the very lacuna the Respondents caution against. The fund is yet to be operationalized as both the Investment Policy and Business Plan are not developed and adopted. 105.I conclude therefore that the balance of convenience does not favour a blanket prohibition on operationalisation of the Act; rather, it favours ensuring that any ongoing activities of the Fund are conducted transparently, within public view, and subject to constitutional safeguards, so that the Court’s eventual determination is not rendered ineffectual 106.Accordingly, pending the hearing and determination of the Petition the following conservatory orders will issuea.The 1st Respondent is hereby directed to file in Court and serve upon the Petitioners within thirty (30) days of this Order (not later than 24th August 2026), accounts certified by the Auditor General in relation to the National Infrastructure Fund from its date of commencement.b.The said accounts shall detail all funds received, the exact dates deposited into the Central Bank of Kenya accounts or any commercial bank accounts operated under Section 40 of Act No. 4 of 2026, and all transactions, expenditures, or allocations drawn from the Fund.c.The respondents shall continue to file the said accounts including transaction reports in Court every three (3) months consecutively effective 30th November 2026 pending the final determination of this Petition.d.On costs, this being a public interest litigation each party will bear their own costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 23RD JULY 2026.P.M. NYAUNDIJUDGEIn the Presence ofFardosa Court AssistantOnyango for 1st, 2nd & 3rd PetitionersGicharia for 5th PetitionerMutua for 3rd RespondentMs. Kiramana 1st, 4th Interested PartyMulongo for 10th PetitionerMbarak for 2nd & 6th RespondentMs. Jane Ebenyo for 5th RespondentOmagwa for 1st Interested Party