The High Court has declined to issue conservatory orders stopping the planned privatization of the Kenya Pipeline Company (KPC), following a petition filed by Busia Senator Okiya Omtatah.
Court Ruling
Justice Lawrence Mugambi ruled on Monday that it would be unfair to grant substantive orders at this stage since the matter had only been listed for mention. The court noted that contested issues including questions of res judicata (a matter already judged) and jurisdiction must first be determined before any interim relief can be granted.
The judge directed that both the preliminary objection and the application for conservatory orders be heard together.
Petition Concerns
Senator Omtatah moved to court seeking urgent orders to halt what he termed as an imminent and unconstitutional privatization process, including an Initial Public Offering (IPO) said to be nearing closure.
At the heart of the petition are concerns over:
- The privatization of public investments
- The alleged influence of the International Monetary Fund (IMF) on Kenya’s fiscal decisions
- Questions of whether international lenders can “micromanage” public funds and be subjected to local jurisdiction
Submissions by Counsel
Constitutional lawyer Kibe Mungai, supporting the petition, argued that the matter raises substantial questions of public finance and sovereignty, warranting empanelment of a multi-judge bench under Article 165(4) of the Constitution.
He cautioned that selling public investments purely for budgetary support could expose Kenya to long-term financial strain:
“All countries, including Singapore, maintain public investments to ensure governments can raise revenue beyond direct taxation. If we allow the sale of public assets purely for budgetary reasons, Kenya risks increasing its tax burden on citizens,” he submitted.
Respondents’ Position
Respondents opposed the grant of conservatory orders, arguing that substantive relief cannot be issued on a mention date. They further noted that part of the issues raised had previously been determined by Justice Bahati Mwamuye, leaving only the IMF-related concerns outstanding.
Next Steps
The matter will now proceed with the court set to hear both the preliminary objection and the conservatory application together before determining the next course of action.
Conclusion
The ruling underscores the complexity of Kenya’s privatization debate, balancing fiscal policy, sovereignty, and public participation. As the case progresses, it is expected to shape discourse on the role of international lenders and the future of public investments in Kenya.
