The High Court has declined to issue conservatory orders stopping the planned privatisation of the Kenya Pipeline Company (KPC), dealing an early setback to a petition filed by Busia Senator Okiya Omtatah.
In a ruling delivered by Justice Lawrence Mugambi, the court held that it would be improper to grant substantive interim relief at this stage, noting that the matter had only been scheduled for mention.
The judge observed that the case raises contested and preliminary issues — including whether the dispute is barred by res judicata and whether the court has the requisite jurisdiction — which must be determined before the court can consider any conservatory orders.
Consequently, the court declined to issue immediate orders and directed that both the preliminary objection and the application for conservatory relief be heard together.
Senator Omtatah had moved to court seeking urgent orders to stop what he describes as an imminent and unconstitutional privatisation process involving KPC, including a proposed Initial Public Offering (IPO) which he says is nearing completion.
Central to the petition are concerns over the disposal of public assets and the alleged influence of the International Monetary Fund (IMF) on Kenya’s fiscal and policy decisions.
The senator questions whether international lenders can effectively “micromanage” the use of public funds and whether such institutions can be subjected to the jurisdiction of Kenyan courts.
Appearing in support of the application, constitutional lawyer Kibe Mungai argued that the case raises weighty constitutional questions touching on public finance management and national sovereignty. He urged the court to certify the matter for hearing by a multi-judge bench under Article 165(4) of the Constitution.
He further submitted that executive decisions to sell public investments in order to plug budgetary gaps could expose the country to long-term fiscal strain.
“All countries, including Singapore, maintain public investments to provide governments with revenue streams beyond direct taxation. If Kenya allows the sale of public assets purely for budgetary support, the country risks shifting a heavier tax burden to its citizens,” counsel argued.
The petition also challenges the process through which certain state corporations — including KPC — are proposed for privatisation, citing alleged deficiencies in public participation.
However, the respondents opposed the request for conservatory orders, maintaining that substantive relief cannot be granted at a mention stage. They further argued that some of the issues raised in the petition had already been determined in earlier proceedings before Justice Bahati Mwamuye.
According to the respondents, the only outstanding question relates to the role and influence of the IMF in the privatisation process.
The court will now proceed to hear the preliminary objection together with the application for conservatory orders before determining the next steps in the matter.
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