The High Court has declined to issue conservatory orders stopping the planned privatisation of Kenya Pipeline Company (KPC), dealing a temporary blow to a petition filed by Busia Senator Okiya Omtatah.
In a ruling delivered on Monday, Justice Lawrence Mugambi said it would be unfair to grant substantive orders at this stage since the matter had only been listed for mention. The judge noted that key issues raised in the case, including jurisdiction and whether parts of the dispute had already been determined, must first be addressed.
The court directed that the preliminary objection and the application for conservatory orders be heard together before any further decision is made.
Omtatah had moved to court seeking urgent intervention to block what he described as an imminent and unconstitutional privatisation process, including a reported Initial Public Offering (IPO). He raised concerns about the sale of public investments and questioned the influence of the International Monetary Fund (IMF) on Kenya’s fiscal decisions.
The senator argued that there are serious constitutional questions over whether international lenders can influence the management of public funds and whether such entities can be subjected to Kenyan courts.
Supporting the petition, constitutional lawyer Kibe Mungai submitted that the case raises weighty issues on public finance and sovereignty. He urged the court to consider empanelling a multi-judge bench under Article 165(4) of the Constitution.
Kibe warned that disposing of public investments for budgetary support could expose the country to long-term financial strain, arguing that state assets play a key role in cushioning governments from excessive taxation.
The petition also questions the level of public participation in the proposed privatisation of certain state corporations, including KPC.
However, lawyers representing the respondents opposed the application, maintaining that substantive relief cannot be granted at a mention stage and that some of the issues had previously been addressed by the court.
The case will now proceed with the High Court set to hear both the preliminary objection and the application for conservatory orders together before determining the way forward.
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