Petition filed to bar implementation of the National Infrastructure Fund Act
By Zipporah Ngwatu, March 17, 2026Katiba Institute has filed a petition seeking temporary orders barring the National Assembly, the Attorney General (AG), and the Treasury Cabinet Secretary, John Mbadi, from operationalising the established National Infrastructure Fund (NIF) Act.
The petitioner wants the court to restrain the three respondents (National Assembly, AG and CS Mbadi) from enacting the NIF Act that was passed by the first respondent on March 5, 2026, pending the hearing and determination of the application.
According to the Katiba Institute, the Act was enacted without following the proper constitutional process of involving the Senate, yet it carves out exclusive county government functions and national (not “national government”) resources to which counties are constitutionally entitled.
“Pending the hearing and determination of this application, this Honourable Court be pleased to issue a conservatory order restraining the respondents from taking any steps targeted at operationalising the National Infrastructure Fund Act, 2026,” part of the application reads.
Restraining Mbadi
Further, Katiba also wants the court to issue a conservatory order restraining the National Assembly, AG and CS Mbadi from paying into the fund (if already established) any proceeds of privatisation, including the proceeds of the Kenya Pipeline Company listing and the Safaricom divestiture.
The petitioner argues that the National Assembly has, through the Act, handed over a Ksh5 trillion public fund to the national executive for operation outside the elaborate fiscal control and oversight framework established under the Constitution.
Notably, the Katiba Institute avers that the National Assembly has particularly excluded the office of the Controller of Budget from undertaking its constitutional budget implementation oversight and reporting role.
Further, they note that the Act also undermines the constitutional imperative for prudent and responsible use of resources by permitting the establishment of a series of national executive hand-picked and controlled structures to operate parallel and concurrent mandates with already existing national executive hand-picked and controlled structures, the national government’s ministries and state departments.
They also reveal that between 19 and 24 February 2026, the Kenyan government sold a 65 per cent stake of the Kenya Pipeline Company (KPC), raising Ksh106.3 billion from the sale.
“On March 10, 2026 (a day after the president had assented to the impugned act), the National Assembly approved the sale of part of the government’s shares in Safaricom (15 per cent of its 35 per cent stake) to raise Ksh204 billion,” Katiba Institute states in the application.
“The National Assembly also approved the government’s plan to forego receipt of future dividends on the balance of its Safaricom ownership (20%) in return for an upfront advancement of Ksh 40.2 billion from the buyer. Cumulatively, this sale (and borrowing), set to be concluded by 31 March 2026, raises Ksh244.2 billion,” the Katiba Institute adds.
Privatisation plan
In addition, the petitioner states that at least 10 other state corporations are lined up for privatisation, with the government emphasising its commitment to this in its 2026 budget policy statement.
“The Ksh350.5 billion already raised as well as all the money to be raised from the privatisation of national assets are planned to be channelled into the unconstitutionally established fund and be utilised under the unconstitutional framework established under the act,” the petitioner argues.