The government has challenged the urgency of a petition seeking to halt the proposed Sh375 billion redevelopment of Jomo Kenyatta International Airport (JKIA), arguing that the case is premature, speculative and improperly before the courts.
State lawyers say the petitioner, Consumer Federation of Kenya (Cofek), undermined its own claim of urgency by failing to serve key parties as directed and should have pursued statutory remedies before filing suit.
The challenge emerged as the Attorney-General Dorcas Oduor asked court to dismiss the petition, arguing that the dispute falls within the mandate of procurement regulators and access-to-information bodies rather than the High Court.
The petition seeks to stop the planned airport redevelopment project, which includes expansion works, airport-city developments and long-term financing arrangements linked to JKIA.
Cofek has questioned the project's transparency, financing structure, ownership arrangements and procurement framework, claiming that the public has not received adequate information about one of country's largest planned infrastructure projects.
The suit names the Cabinet Secretary for Roads and Transport, Kenya Airports Authority (KAA), the Cabinet Secretary for the National Treasury and Economic Planning and the Attorney-General as respondents.
China Communications Construction Company, China Road and Bridge Corporation and IMC Construction Kenya Ltd are listed as interested parties.
The case has drawn additional public attention because Cofek cites reports linking interested party IMC Construction Kenya Ltd to Zimbabwean businessman Wicknell Chivayo, who has publicly shared photographs and videos of meetings with President William Ruto during visits to Kenya.
Appearing before the court, Cofek lawyer Tali Israel Tali admitted that some respondents and interested parties had not been served within timelines set by the court after the matter was certified urgent.
"We did not end up serving this particular matter to some of the parties, including the interested parties. I apologize to the court," Mr Tali said.
Senior Deputy Chief State Counsel Samuel Kaumba seized on the admission, arguing that the failure to comply with court directions had stripped the petition of the urgency relied upon to seek conservatory orders.
"The first implication is that, by the conduct of the counsel, this matter has since lost urgency," Mr Kaumba told the court.
He argued that respondents risked prejudice if proceedings continued without proper service and said parties seeking equitable relief must first comply with court orders.
The Attorney-General's counsel also filed a preliminary objection and detailed submissions seeking dismissal of the petition and the application.
In the filings, the State argues that Cofek rushed to court largely on the basis of newspaper reports without first seeking verification through existing legal mechanisms.
"It is inconceivable that a litigant on the basis of a single article in a newspaper, without taking due care and skill to verify the veracity of the allegations, would readily approach court," the Attorney-General says in the submissions.
The State argues that complaints concerning procurement proceedings should first be investigated under the Public Procurement and Asset Disposal Act.
It says the Public Procurement Regulatory Authority and the Public Procurement Administrative Review Board have statutory mandates to investigate and determine such disputes.
The Attorney-General further argues that concerns regarding access to information should first be pursued under the Access to Information Act before constitutional proceedings are commenced.
"The complaint can easily be addressed under the statutory framework of the Public Procurement and Asset Disposal Act, and the Access to Information Act," the submissions state.
According to the Attorney-General, Tender No SDAAD/OT/001/2025-2026 is still underway and no final decision has been made capable of attracting judicial intervention.
"To the extent that the procurement process is not yet complete, there is no ripe dispute capable of consideration by this court," the State argues.
The filings contend that allowing the petition to proceed would undermine administrative autonomy, procurement oversight structures and the principle that specialised statutory institutions should handle disputes falling within their jurisdiction.
Cofek has maintained that the issues raised in the petition remain unresolved despite the service lapse.
"The matter has not lost its public-interest nature. The actions complained of in the petition and the applications have not been remedied," Mr Tali told the court.
After hearing the parties, the court allowed Cofek to rectify the service defect, rejected the State's request for 21 days to respond and granted respondents and interested parties 10 days to file replies.
The court also directed that the Attorney-General's preliminary objection and Cofek's application for conservatory orders be heard together when the matter comes up on July 9.
