A Kenyan living in the United Kingdom has filed a constitutional petition seeking to invalidate the Privatisation Act, 2025, claiming it contravenes the Constitution and was passed without following the proper legislative process.
Eliud Karanja Matindi says the new law is unlawful because Parliament approved it without Senate involvement and that it permits the disposal of public land and assets against constitutional safeguards.
According to the petition filed in the High Court, Matindi wants the entire Act suspended, arguing that its provisions on the transfer of state assets to private hands undermine the collective ownership of public resources by Kenyan citizens.
The court has ordered that Attorney-General Dorcas Oduor and Parliament be served with the suit papers within three days ahead of a mention scheduled for November 17.
In his filing, Matindi states that the main objective of the Act is to enable the privatisation of public entities through the transfer of assets and liabilities to private entities, a move he believes is unconstitutional.
He maintains that the Act’s provisions amount to the sale of public land, which is constitutionally protected as a national resource belonging to all Kenyans.
“To the extent the Act provides for privatisation of public entities that hold public land as defined by Article 62 of the Constitution, it is the petitioner’s case that the whole Act is unconstitutional,” he says.
Matindi lists several state corporations that could be affected, including Kenya Pipeline Company, Mt Elgon Lodge in Kitale, Golf Hotel in Kakamega, and Kabarnet Hotel in Baringo County.
He insists that transferring ownership of such land to private individuals would defeat the principle of equitable access and sustainable use of public land. “It also cannot be equitably accessed by persons other than the new, private owners,” he adds.
The petitioner argues that converting public land into private ownership, as outlined under Article 64 of the Constitution, will result in either freehold or leasehold tenures, yet the Act does not specify which system would apply.
He adds that there is no indication that such land could be turned into community land as provided under Article 63, further demonstrating the lack of clarity in the legislation.
“This lack of clarity on such a critical aspect of matters to be dealt with under the Act, violates the national values and principles of governance under Article 10(2) of the Constitution, including the rule of law, democracy and participation of the people, good governance, integrity, transparency and accountability,” Matindi states.
He further warns that the privatisation of public land would breach Articles 201(c) and (d) of the Constitution, which require that public funds and assets be used responsibly and for the equitable benefit of both current and future generations.
According to him, the Act will only favour a few individuals in the present generation while denying future citizens access to collective public resources.
Matindi also questions the clause in the Act directing that proceeds from the sale of national government shares be deposited into the Consolidated Fund.
He argues that the funds will likely be channelled towards debt repayment instead of public development projects.
“It is a matter of public record and notoriety that a significant percentage of revenue being currently collected by the government is being used to pay the national debt,” he says, adding that this means proceeds from privatisation will not benefit citizens as intended.
He cautions that if future governments attempt to reclaim privatised land, they will be forced to compensate private owners using taxpayers’ money, which he says is contrary to the principle of prudent financial management.
“In addition, should future generations wish to convert the privatised land back to public, they will have to pay compensation to the private owners, a threat to the duty to use public money in a responsible and prudent way,” he says.
