By Sam Alfan

President William Ruto’s ambitious Sh5 trillion National Infrastructure Fund has been dealt a major legal blow after the High Court issued orders suspending its establishment and operationalization.

In a ruling that strikes at the heart of the administration’s economic transformation agenda, Justice Bahati Mwamuye restrained the Attorney General, National Treasury, National Assembly, Senate, and Controller of Budget from establishing, incorporating, registering, or funding the controversial fund pending hearing and determination of the case.

The court’s conservatory orders follow a constitutional petition filed by four Kenyans—Dr. Magare Gikenyi, a consultant trauma surgeon from Nakuru, along with Eliud Matindi, Philemon Nyakundi, and Dishon Mogire—who argued that the government created the fund illegally through executive fiat without parliamentary approval.

At the center of the legal challenge is the government’s December 15, 2025, State House communiqué announcing Cabinet approval of the National Infrastructure Fund as a limited liability company—a move the petitioners say violates multiple constitutional provisions.

“The respondents purported to create a public fund through executive fiat,” the petition states, arguing that Article 206(1)(a) of the Constitution explicitly requires that any national government public fund must be established through an Act of Parliament or under the Public Finance Management Act 2012—not as a company under the Companies Act.

The petitioners contend that establishing a public fund as a limited liability company “goes against Article 201 of the constitution,” which mandates openness, accountability, public participation in financial matters, and prudent use of public resources.

Justice Mwamuye heard arguments that the government’s actions violated constitutional requirements for transparency and public participation. The court was told that it remains unknown whether the fund was established as a company limited by shares or guarantee, contrary to requirements for timely and accurate public information.

“There is no public participation on establishment of the impugned fund,” the petition emphasized, noting that Article 132(4) requires the President to perform executive functions only as provided for in the Constitution or national legislation.

In a particularly scathing criticism, the petitioners accused both the National Assembly and Senate of “failing in its role by being a bystander while the executive is purporting to create an ad hoc public fund.”

They argued that the fund “operates outside normal budgetary controls” resulting in “reduced parliament oversight and accountability.”

Section 24(2) of the Public Finance Management Act requires that the Cabinet Secretary may only establish a national government public fund “with the approval of the National Assembly”—a step the petitioners say was bypassed entirely.

The petition also raised concerns that the National Infrastructure Fund threatens the Equalization Fund established under Article 204 of the Constitution, which allocates 0.5% of national revenue to provide basic services to marginalized areas.

The petitioners warned the fund “will divert or duplicate functions covered by the equalization fund,” potentially undermining constitutional protections for historically disadvantaged regions.

The petitioners expressed alarm at the government’s stated intention for “strategic monetization of mature public assets” to capitalize the fund, pointing to recent sales of Safaricom shares and attempted privatization of Kenya Pipeline Company.

They argued this signals “a wide scheme to enrich shadowy figures within government cycle for political and economic gains,” drawing parallels to the notorious 1990 Goldenberg scandal.

“Considering the current regime/government is known to be finger itchy to sale of public assets,” the petition states, “it is reasonable to believe that this action is part of” a broader problematic pattern.

The petitioners also questioned the government’s track record on debt management, noting that “successive government has not accounted the over 6.95 Trillion odious debt and specifically the Ruto Government has not accounted the over 4 trillion borrowed.”

The National Infrastructure Fund, as announced by President Ruto, was designed to anchor Kenya’s “long-term development and economic transformation” by financing priority projects including:

• 50 mega dams and 1,000 micro-dams for irrigation
• Dualling of 2,500km of highways
• Tarmacking of 28,000km of roads
• Extension of the Standard Gauge Railway to Malaba
• Adding 10,000 megawatts of new energy capacity

The government had promised that “every shilling invested through the Fund is expected to crowd in up to KSh10 additional shillings from long-term investors.”

Justice Mwamuye directed the petitioners to serve all respondents, the Law Society of Kenya, and Katiba Institute with the application, petition, and court order by close of business December 29, 2025.

The Attorney General, Cabinet Secretary for Treasury, National Assembly, Senate, and Controller of Budget—named as respondents—have yet to file their responses.

The case represents the latest in a series of 2025 court setbacks for the Ruto administration, as judges increasingly scrutinize executive decisions on public finance and define the limits of presidential power under Kenya’s 2010 Constitution.

As the legal battle unfolds, Kenya’s ambitious infrastructure transformation agenda now hangs in the balance, awaiting constitutional clarity on how—and by whom—such massive public funds can lawfully be established.