Four Kenyans have moved to the High Court to stop the government from implementing the proposed National Infrastructure Fund, arguing that it was created illegally through executive action without Parliament’s approval.
In a petition filed in the Constitutional and Human Rights Division at Milimani, Nairobi, the petitioners argue that President William Ruto’s administration violated the Constitution by announcing the fund through a State House communiqué dated December 15, 2025.
They contend that the fund, touted as part of a Sh5 trillion infrastructure roadmap, amounts to a national public fund that can only be established by law.
Dr Benjamin Magare-Gikenyi at a past interviewed. He filed a petition challenging last year's promotions at the Attorney-General’s office.
Photo credit: File | Nation
The petitioners, led by Nakuru-based consultant surgeon Dr Magare Gikenyi, say the executive acted outside its powers by approving the National Infrastructure Fund as a limited liability company.
The communiqué stated that the fund would “serve as the central engine for aligning the administration’s financial resources with national development priorities.”
According to the petition, Article 206 of the Constitution is clear that any national public fund must be established either by the Constitution itself or through an Act of Parliament.
“A national public fund cannot be established under any other statutory regime, including as a limited liability company under the Companies Act,” the petitioners argue.
They say the move violates core constitutional principles on public finance, including openness, accountability, and prudent use of public resources.
The petition cites Article 201, which requires that public money be used responsibly and with public participation—conditions the petitioners say were ignored.
The case also raises concerns that the proposed fund could undermine the Equalisation Fund established under Article 204 of the Constitution.
The petitioners argue that the new fund risks duplicating or diverting functions meant to address marginalised areas. They warn that this could weaken constitutional safeguards designed to ensure equitable development across the country.
President William Ruto delivers the State of the Nation address at Parliament Buildings in Nairobi on November 20, 2025.
Photo credit: Lucy Wanjiru | Nation Media Group
In their court papers, the petitioners accuse Parliament of failing in its oversight role. They say both the National Assembly and the Senate were “bystanders” while the executive "purported to create an ad hoc public fund outside the budgetary framework."
This, they argue, reduces parliamentary oversight and accountability over public finances.
The petition further questions how the fund would be administered, noting that the government has not disclosed whether it would be a company limited by shares or by guarantee.
This lack of clarity, they say, breaches constitutional requirements on transparency and the provision of accurate information to the public.
The petitioners also take issue with the government’s reference to “strategic monetisation of mature public assets” in the communiqué.
They argue that this signals a plan to sell public assets through a structure that sits outside normal public finance controls. The court papers warn that such an approach risks abuse of power and loss of public assets, drawing parallels with past scandals.
They have asked the court to issue conservatory orders suspending the implementation of the fund and any related actions pending the hearing of the case.
“If this court does not stop the illegal actions and omissions committed by the President and respondents, constitutional violations will continue,” the petition states.
Among the remedies sought is a declaration that the President and other respondents acted unconstitutionally and that any steps taken to establish the fund are null and void.
The petitioners also want the court to bar any further action based on the communiqué and to compel compliance with constitutional and statutory provisions on public finance.
The Attorney General, the Cabinet Secretary for the National Treasury, Parliament, and the Controller of Budget have been named as respondents in the case and have yet to file their responses to the petitioners' concerns. The Law Society of Kenya and Katiba Institute are listed as interested parties.
The case adds to growing legal scrutiny of executive decisions on public finance, as courts continue to define the limits of presidential power under Kenya’s 2010 Constitution.
