National Assembly Seeks Dismissal of Infrastructure Fund Challenge

The National Assembly has asked the High Court to dismiss a constitutional petition challenging the proposed establishment of a National Infrastructure Fund, arguing that the case is speculative, premature, and infringes on the doctrine of separation of powers. In a replying affidavit sworn by the Deputy Clerk of the National Assembly, Jeremiah Ndombi, the House opposed both the petition and an application seeking conservatory orders to halt the Cabinet’s decision of December 15, 2025, approving the establishment of the fund. Ndombi argue that the Cabinet had only approved a proposal to establish the fund as a limited liability company and that no concrete steps had been taken to operationalise it. He said the proposal would still be subjected to the necessary legal, regulatory, and parliamentary processes before it could be implemented. “The issues raised by the petitioners are speculative and premature for judicial determination and undermine the doctrine of separation of powers,” Ndombi states adding that the High Court lacks jurisdiction to intervene at this stage. The petition was filed by Nakuru-based surgeon Dr Benjamin Gikenyi, Eliud Matindi, and other petitioners, who are challenging the establishment of the National Infrastructure Fund through a presidential communiqué dated December 15, 2025. The petitioners argue that the Cabinet’s decision circumvents constitutional safeguards on accountability, transparency, parliamentary oversight, and auditability. They contend that the fund was created without enabling legislation, public participation, or compliance with the public finance framework under Articles 201, 206, 207 and 221–223 of the Constitution, as well as the Public Finance Management Act. According to court documents, the petitioners maintain that Article 206(1)(a) of the Constitution only permits the establishment of a national government public fund through an Act of Parliament or under the Public Finance Management Act, and not through incorporation as a limited liability company under the Companies Act. They argue that the fund was established through executive fiat, without parliamentary approval or a clear legal framework, rendering it unconstitutional. However, the National Assembly insists that the Constitution and the Public Finance Management Act provide a clear mechanism for the establishment of national government public funds, including mandatory parliamentary oversight. The House cited Section 24 of the Public Finance Management Act, which empowers the Cabinet Secretary to establish such funds subject to approval by the National Assembly. Ndombi argued that this statutory requirement demonstrates that Parliament retains ultimate oversight, making the petitioners’ fears premature. The National Assembly further submitted that the petitioners had failed to demonstrate any actual or threatened violation of fundamental rights that would justify the issuance of conservatory orders under Article 23 of the Constitution. “The Cabinet’s decision falls squarely within the executive’s policy-making mandate and is lawful,” Ndombi states, urging the court to refrain from interfering with executive functions. The House has asked the court to dismiss both the petition and the application with costs.