Ruto wins as court lifts orders blocking establishment of Sh5 trillion Infrastructure Fund

The High Court has lifted conservatory orders that had temporarily stopped the establishment and operationalisation of the proposed Sh5 trillion National Infrastructure Fund (NIF), after the National Assembly passed it last evening.

Justice Bahati Mwamuye of the Milimani High Court's Constitutional and Human Rights Division lifted two orders issued on December 24, 2025, in two consolidated constitutional petitions which had barred the government from establishing, registering, operationalising, funding or giving effect to the fund.

The orders had been issued in petitions filed by the Consumers Federation of Kenya (COFEK) and a group of petitioners led by Dr Magare Gikenyi, challenging the legality and structure of the proposed multi-billion-shilling infrastructure fund.

In his ruling, Justice Mwamuye said the court found it necessary to lift the orders in light of new developments, particularly the passage of the National Infrastructure Fund Bill by the MPs on Thursday night, in a development that dramatically reshaped proceedings before they could begin in earnest.

“The court noting the developments in this matter and in light of the fact that when this court issued an ex parte conservatory order, the matter was at a juncture where no bill had been drafted or much less tabled before the National Assembly, this court lifts order number one of this court's orders and directions dated and issued on December 24, 2025 in both petitions E834 of 2025 and E835 of 2025,” Justice Mwamuye ruled.

He explained that the move would allow the parties to decide how they wish to proceed now that Parliament has passed the bill establishing the fund.

“The court takes this measure to facilitate the respective petitioners take necessary actions as they so wish and to prevent any person from moving courts in a fresh petition if they so wish, being barred,” Justice Mwamuye stated.

The judge noted that the petitioners themselves had acknowledged that the legislation passed by Parliament was not directly covered in the original petitions.

READ: National Assembly passes National Infrastructure Fund Bill 2026

“The petitioners in each matter have also confirmed that the bill passed in Parliament was not covered by the petitions on their face. So those orders are lifted,” he stated.

The judge added that maintaining the conservatory orders could potentially bar fresh litigation on the newly enacted law.

"To my mind, if those orders remain in force, then you cannot file a fresh petition because the subject matter… noting particularly in E835 that the National Assembly was a respondent, it is easier to lift it, then it is easier for yourselves to either elect to do whatever within the province of these petitions or to file fresh petitions if you so wish."

The court directed the National Assembly to file the official copy of the bill passed by Parliament to enable the court and parties to review it.

Justice Mwamuye ordered that the document be filed as soon as practicably possible and, in any event, not later than March 13, 2026, ahead of the next mention date.

“Further mention on March 17, 2026. The National Assembly is directed to file a copy of the bill as passed as soon as practicably possible, but in all events on or before March 13, 2026, at the latest,” the judge directed.

The new turn of events began when COFEK’s lawyer Eric Theuri   informed the court of Parliament's overnight action just as the hearing of the cases were expected to kick off Friday morning

"My Lord, I have just learned that the National Assembly has approved the National Infrastructure Fund Bill last evening," Theuri told the Judge.

"In view of that development, and noting that some of the issues arising in this petition relate squarely to the issue of the establishment of the National Infrastructure Fund, I think it would be prudent that we take some time to review what has been passed in Parliament and then come back and take directions on how we are going to proceed with this petition."

He added that proceeding with highlighting submissions without understanding the contents of the newly passed legislation could render the exercise meaningless and a waste of the court's time.

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"It might not be a good usage of time, especially your time, My Lord, if we were to proceed with the highlighting of the submissions and then find that perhaps the exercise we have engaged in is largely academic in nature," he said.

Lawyer Moses Kipkogei, appearing for the respondents, including the Attorney General and the Cabinet Secretary for National Treasury, agreed with COFEK’s position and said the enactment of the bill had addressed several issues raised in the petitions.

"The National Assembly has since enacted the National Infrastructure Fund Bill. It awaits presidential assent and it addresses some of the issues which are challenging these two matters," Kipkogei told the court

He suggested that the court could consider marking the proceedings as spent and allow fresh challenges if any party was dissatisfied with the final law.

“I would have thought, because it is common ground that the bill has indeed been enacted, probably the right course would be to mark these proceedings as spent. Then, if there is any issue which will arise after scrutiny of the bill, then it can be challenged in separate proceedings,” he said.

"I would have thought, because it is common ground that the bill has indeed been enacted, the right course would be to mark these proceedings as spent. Then, if there is any issue which will arise after the petitioners have scrutinised the bill, it can be challenged in separate proceedings."

Ms Nganyi, holding brief for the National Assembly as the third interested party, was equally emphatic

"With the House having passed the National Infrastructure Fund Bill yesterday, last evening, and the bill largely addressing all the issues which have been raised, I believe that now, even if we were to take further time, the petition as it is has now been rendered moot."

In the second petition, Dr Magare Gikenyi and co-petitioner Eliud Matindi told the court that the petitioners should be given time to review the contents of the bill before deciding whether to amend their case or file a fresh petition.

"Maybe you give us a blanket leave either to amend, once we see the act as passed, or to decide whether to file another petition," he proposed.

"It would be premature to mark the matter as closed because we do not as yet know the exact provisions of the bill, and whether once it is assented to and becomes an act of parliament, it addresses the issues in dispute in our petition," Matindi said.

He asked that respondents file the assented copy urgently to give petitioners advance notice.

Meanwhile, lawyer Henry Gichana, appearing for the Katiba Institute, said the organisation’s main concern was the constitutionality of the model through which the fund would be implemented.

He told the court that the passing of the bill potentially addressed some of those concerns, but urged caution before terminating the case.

The most pointed remarks came from lawyer Henry Gichana, appearing for Katiba Institute, who, while acknowledging that the bill addressed their core concern about the constitutionality of the fund, urged the court not to close the matter 

“The circumstances of this case and the conduct of the respondents make us hesitate to agree to either dismiss this petition or mark this petition as spent,” Gichana told the court.

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He cited what he described as contradictory affidavits from Treasury Cabinet Secretary John Mbadi, including an admission that the CS had misled the National Assembly regarding the Safaricom sale.

"We are talking about Sh450.2 billion in the sale of Safaricom and the divestiture of KPC, which is intended to be paid into this fund," Gichana

Gichana also raised concerns over the speed with which Parliament processed the legislation.

“Between the last time we were here on February 12, 2026, and today, exactly three weeks ago, a bill has been introduced in Parliament, read a first time, a second time and a third time,” he said.

However, Justice Bahati Mwamuye declined to record the observation, stating: “That is another branch of government. It is not for me to decide when they are being efficient and when they are not.”

The petitions were initially filed in December 2025, challenging the government’s plan to establish the infrastructure fund, with the court issuing interim orders restraining the state and its agencies from establishing or operationalising the fund pending the hearing of the applications.

The matter to be mentioned before Justice Mwamuye on March 17, 2026, ahead of his noted intention for a tidy handover as judicial transfers approach.