High Court declines to issue orders stopping planned privatisation of Kenya Pipeline
High Court declines to issue orders stopping planned privatisation of Kenya Pipeline
High Court Judge Lawrence Mugambi has declined to issue conservatory orders stopping the planned privatization of KPC following a petition filed by Busia Senator Okiya Omtatah.
In his ruling, the judge stated 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 there are contested issues raised in the case, including questions of res judicata (a matter already judged) and jurisdiction, which must first be determined before any interim relief can be granted.
The court therefore declined to make any immediate orders and instead directed that the preliminary objection and the application for conservatory orders be heard together.
Omtatah had moved to court seeking urgent orders to halt what he terms 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 and the alleged influence of the International Monetary Fund (IMF) on Kenya’s fiscal decisions.
The senator questions whether international lenders such as the IMF can “micromanage” the use of public funds and whether such entities can be subjected to local jurisdiction and sued in Kenyan courts.
Supporting the application, constitutional lawyer Kibe Mungai submitted that the matter raises substantial questions of public finance and sovereignty that warrant empanelment of a multi-judge bench under Article 165(4) of the Constitution.
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Kibe argued that executive decisions involving the sale of public investments for budgetary support could expose the country 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.
The petition also questions the process through which certain state corporations, including the Kenya Pipeline Company (KPC), may be privatized, alleging a lack of adequate public participation.
However, the respondents opposed the grant of conservatory orders, arguing that substantive relief cannot be issued on a mention date and that part of the issues raised had previously been determined by Justice Bahati Mwamuye.
“The only outstanding issue is that of the IMF,” the court was told.
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.
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