Ruto’s Sh5trillion Infrastructure Fund faces legal test at High Court
The legality of the creation of the controversial Sh5trillion National Infrastructure Fund (NIF) through a cabinet resolution without involvement of Parliament, the legislative arm of the government is now a matter of judicial interpretation after four Kenyans moved to the High Court seeking to block its implementation.
The petitioners argue that the President William Ruto’s proposed fund was unlawfully created through executive action without parliamentary approval.
In a petition filed at the Constitutional and Human Rights Division of the Milimani Law Courts, the petitioners accuse the government of violating the constitution by announcing the fund via a State House communiqué issued on December 15, 2025.
They argue that the initiative amounts to the creation of a national public fund, which, under the Constitution, can only be established through the Constitution itself or an Act of Parliament.
Led by Nakuru-based consultant surgeon Dr Magare Gikenyi, the petitioners fault the executive for approving the fund as a limited liability company, saying this exceeds presidential authority and undermines constitutional safeguards governing public finance.
They cite Article 206 of the Constitution, which provides that all national public funds must be established by the Constitution or legislation enacted by Parliament, and argue that such a fund cannot lawfully be created under the Companies Act or through executive decision-making.
The petition further claims that the process violated principles of public finance set out in Article 201 of the Constitution, including transparency, accountability, and public participation. According to the petitioners, the public was not consulted prior to the announcement of the fund.
Concerns have also been raised about the potential impact of the proposed fund on existing constitutional mechanisms, particularly the Equalisation Fund under Article 204. The petitioners warn that the new fund could duplicate or divert resources meant for marginalised areas, weakening constitutional protections aimed at promoting equitable development.
Additionally, the petition accuses Parliament of failing in its oversight role by allowing the executive to purport to create an ad hoc public fund outside the formal budgetary framework. The petition also questions the lack of clarity on the fund’s structure and management, arguing that this violates constitutional requirements on access to information.
The petitioners are seeking conservatory orders to suspend the fund’s implementation, as well as declarations that its establishment is unconstitutional, null, and void. The Attorney General, National Treasury Cabinet Secretary, Parliament, and the Controller of Budget are named as respondents, with the Law Society of Kenya and Katiba Institute listed as interested parties.
