COFEK's second bid to stop Sh8 highway Toll charges crumbles

The government's plan to introduce toll charges on two major highways has survived another legal challenge after a tribunal dismissed a fresh petition by the Consumers Federation of Kenya (COFEK), dealing a second blow to the lobby's efforts to scrutinise the proposed Sh8 per kilometre fees.

The Public Private Partnership (PPP) Petition Committee ruled that COFEK had taken too long to challenge the project disclosure document issued by the Kenya National Highways Authority (KeNHA), making it impossible for the tribunal to consider the issues raised in its petition.

The proposed charges would affect motorists using the Nairobi-Nakuru-Mau Summit highway and the Rironi-Maai Mahiu-Naivasha road, two routes covered by the government's planned tolling arrangement.

In dismissing the case, the committee noted that COFEK had failed to establish the date on which KeNHA issued the disclosure document it was contesting. However, available records indicated that the document existed before September 2, 2025, when stakeholder consultations on the project began.

COFEK's petition was dated September 30, 2026, and submitted to the committee on October 2, 2026, well beyond the seven-day period provided under the law for challenging such decisions.

The committee maintained that the delay deprived it of the legal authority to handle the dispute.

"We find that the petition dated September 30, 2026 and lodged on October 2, 2026 was lodged out of time. Consequently, the Petition Committee does not have the jurisdiction to hear and determine the matter," the committee said.

The Public Private Partnerships Act requires petitions challenging decisions under the framework to be filed within seven days of the disputed decision. Any party dissatisfied with the committee's determination is allowed to appeal to the High Court.

In its complaint, COFEK had sought to compel KeNHA and other relevant authorities to disclose information explaining how the proposed highway tolling project was developed, approved and structured.

The organisation wanted access to project approval documents, feasibility studies, financial models, procurement records, tolling arrangements and records of public participation.

It argued that the disclosure document did not provide adequate explanations on several critical aspects of the project, particularly the affordability of the proposed charges and whether the arrangement would deliver value for money.

The lobby also questioned how the proposed toll rates had been calculated, arguing that motorists needed clear information on the tariff-setting method before the project could proceed.

Other concerns raised in the petition included the availability of alternative routes that would not attract toll charges, categories of motorists who could qualify for exemptions and how financial risks associated with the project would be distributed.

COFEK wanted the committee to direct the authorities to produce the requested records and independently examine them to establish whether the project had met the legal requirements set out in the Public Private Partnerships Act.

However, the tribunal did not proceed to examine the substance of these complaints after finding that the petition had been filed outside the prescribed period.

The dismissal is another setback for the consumer lobby, which has now failed twice to advance its challenge against the proposed tolling arrangement through the courts and the statutory dispute resolution process.

In September, the Milimani High Court struck out an earlier constitutional petition filed by COFEK, finding that the organisation had approached the court without first exhausting the dispute resolution procedure established under the Public Private Partnerships Act.

The court held that complaints concerning public-private partnership projects should initially be presented before the PPP Petition Committee, which is mandated to handle such disputes.

COFEK subsequently pursued the matter before the committee, but its latest application has also been rejected, this time over failure to meet the statutory filing deadline.

The law allows parties aggrieved by decisions made by the committee to seek further redress at the High Court.