The High Court ordered the government to produce key records underpinning the privatisation of Kenya Pipeline Company (KPC) before a petition challenging the sale proceeds is heard.
Justice Patricia Nyaundi ordered the National Executive, the Attorney-General, the Privatisation Commission and the Privatisation Authority to produce valuation reports, Cabinet memoranda, procurement records, International Monetary Fund (IMF) agreements and other transaction papers within 21 days.
The court issued the order after declining the Attorney-General’s bid to dismiss the constitutional petition challenging the transaction. The court also declined to refer the dispute to a multi-judge bench, allowing it to continue before a single judge.
The government completed the sale in March, raising Sh106.3 billion after selling a 65 percent stake in KPC through an oversubscribed initial public offering. KPC was listed on the Nairobi Securities Exchange on March 10, 2026 with the government retaining a 35 per cent shareholding. The government later revoked the firm's status as a national government entity.
The petition was filed in January 2026 by Busia Senator Okiya Omtatah, fraud risk consultant Bernard Muchiri Muchere and Naomi Nyakerario Misati against the National Executive, the Attorney-General, the Privatisation Authority, KPC, the International Monetary Fund and other respondents.
They seek to challenge the constitutionality of the privatisation of KPC and other state corporations, the Privatisation Act, 2025, and the role of IMF-linked reform commitments.
Justice Nyaundi rejected the Attorney-General's preliminary objection that the case was barred because similar issues had already been decided in earlier constitutional petitions.
The Attorney-General argued that previous judgments had conclusively settled questions surrounding the Privatisation Act, public participation, national security concerns and the KPC privatisation process.
The petitioners countered that the current case raised different constitutional issues, including "the constitutionality of privatisation," the validity of the Privatisation Act, 2025, IMF conditionalities, the legality of appointments to the Privatisation Authority and what they described as a Sh97 billion financial anomaly at KPC.
The court agreed that the petition could proceed but declined to grant interim orders sought by the petitioners.
Instead, it directed the respondents to disclose documents they relied on in the privatisation process, including valuation reports, feasibility studies, transaction structures, financial models, Cabinet memoranda, policy papers, procurement records relating to advisers, parliamentary approvals and reports assessing the national security implications of the transaction.
The court also rejected a request to certify the petition as raising substantial constitutional questions requiring an uneven bench of at least three judges under Article 165(4) of the Constitution.
The petitioners had argued that the dispute concerned sovereignty, public finance, national security and the constitutional limits of external economic influence, making it a matter of exceptional public importance.
They told the court that the issues were "novel, complex, unsettled and of profound public importance," adding that empanelment was necessary "to ensure jurisprudential stability and public confidence."
The petition itself alleges that the privatisation was "externally driven by unconstitutional IMF conditionalities rather than sovereign public interest," undertaken without meaningful public participation and conducted by bodies "lacking legal capacity."
The petitioners also rely on an affidavit by Mr Muchere, who says he analyzed KPC's audited 2023/24 accounts and found the company earned a profit after tax of Sh6.87 billion and paid Sh7 billion in dividends.
He alleges there is "an unexplained variance" of about Sh97.18 billion that "constitutes evidence of serious financial impropriety, misapplication, or concealment of public money held by KPC."
The respondents have denied the claims and opposed both the application for interim orders and the request for empanelment, maintaining that the legal threshold for either order had not been met.
The constitutional petition will now proceed after the government files the records ordered by the court.
