A constitutional petition challenging the planned privatisation of Kenya Pipeline Company (KPC) has been filed before the High Court, with the petitioners urging the court to refer the matter to the Chief Justice for the empanelment of a three-judge bench.
The petition has been filed by activist Okiya Omtatah Okoiti, Bernard Muchiri Muchere, and Naomi Nyakerario Misati against several respondents, including the National Executive, the Attorney General, Parliament, the Privatisation Authority, the Kenya Pipeline Company Board, and the International Monetary Fund (IMF).
Katiba Institute and the Law Society of Kenya have joined the case as interested parties.
In their submissions, the petitioners argue that the case raises substantial and unprecedented constitutional questions that go beyond the scope of determination by a single judge, as provided under Article 165(4) of the Constitution.
They maintain that the proposed privatisation of KPC, a profitable and strategically important state corporation, has serious implications for national security, public finance, economic sovereignty, and the management of public assets, making it necessary for the matter to be heard by a bench of at least three judges.
The petition challenges whether the existing privatisation framework under the Privatisation Act of 2005, as reinforced by the Privatisation Act of 2025, is consistent with the principles and values of the 2010 Constitution.
The petitioners argue that state corporations are public assets held in trust for the people of Kenya and that their transfer to private ownership must strictly comply with constitutional requirements on public participation, transparency, accountability, and equitable use of public resources.
They also raise concerns over the process used to approve KPC’s privatisation, questioning the legality of relying on a Sessional Paper instead of an Act of Parliament.
According to the petitioners, this approach undermines the Constitution’s clear legislative procedures and weakens parliamentary oversight over the disposal of public assets.
Additionally, the petition questions the influence of external actors, particularly the IMF, alleging that the decision to privatise KPC is driven by conditions attached to international lending arrangements.
The petitioners argue that such conditionalities amount to an unconstitutional surrender of Kenya’s sovereign decision-making power and violate the national values set out in Article 10 of the Constitution.
The case also raises substantive constitutional issues, including whether the privatisation of critical energy infrastructure poses a threat to national security under Article 238, and whether selling public assets to address debt obligations is consistent with the principles of prudent and responsible public finance under Article 201.
They further cite concerns about the integrity of the privatisation process, including alleged irregular appointments to the Privatisation Authority and the absence of a forensic audit despite claims of significant unexplained financial discrepancies at KPC.
The petitioners argue that no Kenyan court has previously determined whether privatisation, as currently structured, is constitutionally permissible under the transformative framework of the 2010 Constitution.
They contend that the outcome of the case will have far-reaching consequences and set a binding precedent affecting all state corporations earmarked for privatisation.
For these reasons, the petitioners have asked the High Court to certify the matter as one raising substantial questions of law and to refer it to the Chief Justice for the empanelment of a bench of not less than three judges. They have also sought the costs of the application.
