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A constitutional case seeking to stop the proposed privatisation of the Kenya Pipeline Company (KPC) has been filed at the High Court, with the petitioners asking that the matter be referred to the Chief Justice to constitute a three-judge bench.
The petition has been brought by activist Okiya Omtatah Okoiti together with Bernard Muchiri Muchere and Naomi Nyakerario Misati. They have listed the National Executive, the Attorney General, Parliament, the Privatisation Authority, the KPC Board, and the International Monetary Fund (IMF) as respondents.
Katiba Institute and the Law Society of Kenya have joined the case as interested parties.
In their filing, the petitioners argue that the case presents complex and significant constitutional issues that cannot be adequately handled by a single judge, as provided for under Article 165(4) of the Constitution. They say the planned sale of KPC—described as a profitable and strategically important state corporation—poses serious implications for national security, public finances, economic independence, and the management of public assets, justifying review by a multi-judge bench.
The petition challenges the legality of Kenya’s privatisation framework, which is based on the Privatisation Act of 2005 and strengthened by the Privatisation Act of 2025. The applicants question whether these laws align with the principles and values of the 2010 Constitution, arguing that state-owned enterprises are public property held in trust for citizens and that any transfer to private ownership must meet strict constitutional requirements on public participation, transparency, accountability, and fair use of public resources.
They also dispute the process used to approve KPC’s privatisation, claiming that reliance on a Sessional Paper instead of legislation enacted by Parliament violates constitutional law-making procedures and weakens parliamentary oversight in the disposal of public assets.
Additionally, the petition raises concerns about external influence, particularly the involvement of the IMF. The applicants allege that pressure to privatise KPC is linked to conditions attached to international lending arrangements, which they argue amounts to an unlawful delegation of Kenya’s sovereign policy-making authority and contravenes national values under Article 10 of the Constitution.
The case further questions whether privatising key energy infrastructure threatens national security as envisioned in Article 238, and whether selling public assets to address debt challenges complies with the principles of prudent and responsible public finance under Article 201.
The petition also highlights governance issues, including alleged irregular appointments at the Privatisation Authority and the lack of a forensic audit despite claims of unexplained financial discrepancies at KPC.
According to the petitioners, Kenyan courts have not previously examined whether the current privatisation regime meets the transformative goals of the 2010 Constitution. They argue that the outcome of the case could set a precedent affecting all state-owned entities targeted for privatisation.
On these grounds, the applicants are asking the High Court to certify the matter as one involving substantial constitutional questions and to forward it to the Chief Justice for the appointment of a bench of at least three judges, as well as to award them the costs of the application.
