High Court Issues Conservatory Orders on National Infrastructure Fund

Conservatory orders have been issued by the High Court concerning the operationalisation of the National Infrastructure Fund (NIF).

This follows a petition filed by Katiba Institute challenging the constitutionality of the National Infrastructure Fund Act, 2026.

On 23 July, 2026, Justice Patricia Nyaundi ruled that the issues raised by Katiba Institute concerning the National Infrastructure Fund Act, 2026, were arguable and deserved to be heard.

The Court ruled that unless the court intervened in time, there would be a high probability that the continued implementation of the Act would make the petition redundant in case the financial transactions were made before the matters were sorted out.

Katiba Institute lauded the decision made by the court, terming it a giant step towards protecting public money and at the same time observing constitutional obligations.

Even though the institute wanted the implementation of the Act to be suspended completely, the court decided to issue conservatory orders that would ensure strict financial reporting.

“The High Court has delivered a major ruling in favour of public accountability, placing the newly operationalised National Infrastructure Fund, 2026, under strict judicial and financial observation, following a petition and application by Katiba Institute,” Katiba Institute stated.

Court Finds Constitutional Questions Worthy of Full Hearing

Justice Nyaundi ruled that the petition raises legitimate constitutional issues that warrant judicial determination.

“Without pronouncing on the ultimate validity of those claims, I am satisfied that the issues raised touching on the constitutionality of the statutory framework, the scope of legislative authority and alleged derogation from constitutional safeguards, are neither frivolous nor insubstantial. They present bona fide questions that properly fall within the court’s mandate to interrogate the constitutionality of legislation. I am therefore persuaded that the Petition meets the threshold of an arguable constitutional Petition,” the ruling stated.

The judge observed that halting the entire Act would be an intrusive remedy and instead found that public interest would be better served by allowing implementation to continue under close court supervision.

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Katiba Institute had argued that immediate intervention was necessary to safeguard public funds while the legality of the National Infrastructure Fund Act is tested before the court.

Treasury Ordered to File Certified Financial Records

Under the conservatory orders, the Cabinet Secretary for the National Treasury has been directed to provide comprehensive certified financial records relating to the National Infrastructure Fund.

“Immediate Certified Disclosure: By 24 August 2026, the CS must file in Court and serve upon the Petitioners comprehensive accounts of the Fund from its date of commencement, fully certified by the Auditor-General,” the statement stated.

The court further directed that the financial records must disclose every amount received into the Fund, where the money was deposited and how it has been spent.

“Detailed Financial Tracking: The submitted accounts must detail every fund received, the exact dates deposits were made into the Central Bank of Kenya (CBK) accounts or commercial bank accounts operated under Section 40 of the Act, and a complete record of all transactions, expenditures, and allocations drawn from the Fund,” Katiba Institute stated.

In addition, the Treasury will be required to continue filing certified financial reports every three months until the constitutional petition is finally determined.

“Mandatory quarterly reporting: To ensure ongoing oversight, the National Treasury must continue filing these certified accounts and detailed transaction reports in Court every three months, consecutively, starting 30 November 2026, until the final determination of the petition,” Katiba Institute added.

Judge Warns Petition Could Be Rendered Meaningless

In explaining the need for conservatory orders, Justice Nyaundi noted that substantial financial transactions were either already underway or imminent.

“I am persuaded that absent the court’s intervention at this juncture, the Petition risks being rendered academic, and therefore of no practical consequence. The statutory scheme at issue contemplates ongoing and substantial financial transactions, some of which have already occurred and others that are imminent,” Justice Nyaundi stated.

The judge added that permitting unchecked implementation could undermine the effectiveness of the court’s eventual decision.

“If those processes continue unchecked while constitutional questions remain unresolved, the Petitioners’ challenge may be overtaken by events in a manner that deprives the court’s eventual determination of meaningful effect,” Nyaundi added.

Justice Nyaundi also found that a complete halt to the Fund’s implementation would not strike the appropriate constitutional balance.

“In this case, the balance of convenience does not favour a blanket prohibition on operationalisation of the Act. Rather, it favours ensuring that any ongoing activities of the fund are conducted transparently, within public view and subject to constitutional safeguards,” Nyaundi added.

She further observed that the Fund had not yet been fully operationalised because key governance instruments were still pending.

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“The fund is yet to be operationalized as both the investment policy and the business plan are not developed and adopted,” she said.

The court concluded that transparency measures offered a proportionate solution by keeping the Fund operational while ensuring public accountability.

“The proper constitutional balance consistent with public interest, separation of powers, and the need to preserve the efficacy of the court’s final orders, lies in permitting continued formalization of the fund, subject to strict transparency measures, including public disclosure of all deposits, withdrawals and transactions, and adherence to constitutional oversight mechanisms,” Nyaundi added.

Katiba Institute Welcomes Court Intervention

Following the ruling, Katiba Institute Executive Director Nora Mbagathi said the organisation would closely monitor compliance with the court’s directives.

“We welcome the High Court’s decisive intervention to safeguard public resources and enforce financial transparency. We will formally notify all relevant state offices of their binding obligations under this court order and will rigorously scrutinise every account and report filed. We remain steadfast in our commitment to ensuring that the Constitution is respected in the implementation of this Fund, as we await the final determination of our petition,” Nora Mbagathi stated.

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