A bid to freeze the government’s plan to privatise the Kenya Pipeline Company has hit a roadblock after the High Court declined to grant temporary orders sought by Busia Senator Okiya Omtatah.
In a decision issued on Tuesday, Justice Lawrence Mugambi ruled that it would not be proper to issue far-reaching conservatory orders when the matter had only been scheduled for mention. He said the court must first deal with key preliminary questions raised by the parties.
According to the judge, the petition brings up contested legal issues, including whether it is barred by res judicata and whether the court has authority to handle some of the claims presented.
He held that these "preliminary matters must be determined before the court can consider granting any conservatory relief."
As a result, no interim orders were issued to stop the privatisation process. The court directed that the respondents’ preliminary objection be heard together with the senator’s application seeking conservatory orders.
Omtatah had filed the case under a certificate of urgency, asking the court to suspend what he described as an imminent and unconstitutional plan to privatise the Kenya Pipeline Company. He claimed that the proposed Initial Public Offering was close to completion.
Through his petition, the senator challenges the broader policy of disposing of key public investments. He questions whether Kenya’s fiscal direction is being shaped by external actors, including the International Monetary Fund.
He further raises the issue of whether such lenders can influence the use of public assets and whether they can be subjected to Kenyan court processes.
Constitutional lawyer Kibe Mungai, representing the petitioner, asked the court to recognise the case as one of great public importance.
He argued that the matters raised concern public finance, sovereignty, and intergenerational equity, and therefore require the empanelment of a bench of more than one judge under Article 165(4) of the Constitution.
Mungai cautioned that "selling public investments to plug budgetary gaps could expose the country to long-term financial pressure," noting that many governments rely on public assets as an additional source of revenue.
The petition also criticises the steps taken toward privatising KPC and other state corporations, alleging that the process did not involve adequate public participation.
The respondents opposed the urgent application, stating that substantive orders cannot be granted on a mention date. They also argued that certain issues had already been determined in earlier proceedings before Bahati Mwamuye and should not be litigated again.
The case will proceed to a full hearing, where the court will first determine the preliminary objections before deciding whether any interim protection is warranted.
