Fresh twin challenge against Infrastructure Fund lands in court

President William Ruto assents to the National Infrastructure Fund Bill at State House, Nairobi. [PCS]

The broad-based government may not rest easy with the National Infrastructure Fund (NIF) after a fresh twin challenge was lodged in court yesterday.

Days after President William Ruto assented to the law, creating a foundation for the fund, activist Benard Opere, Kemunto Ateka, Frego Engineering Company, and Kevin Wereh filed separate cases arguing that the fund has serious flaws, which put taxpayers’ money at risk.

In his case, Opere claimed that the fund was created to evade oversight. His lawyer, Ibrahim Onyinyo, said although Kenyans were told that the fund would ease the government’s borrowing appetite, the law, National Infrastructure Fund Act, 2026, as passed by members of Parliament, allowed the managers to among other things, borrow.

“The said legislative framework raises serious constitutional concerns relating to transparency, accountability and governance of public finances. The Act allows substantial public revenues to be transferred into a special fund structure outside the traditional safeguards associated with the Consolidated Fund under the Constitution,” argued Onyinyo.

 According to the lawyer, it is unclear how taxpayers' money will be cushioned from plunder and theft.

He said that Parliament did not address the animal in the room, which was the prevention of the misuse of public resources.

“The continued implementation of the impugned Act before the determination of this Petition may lead to irreversible financial commitments and transactions involving public funds, which may render the petition nugatory,” said Onyango.

Opere sued the National Treasury, National Assembly, and Attorney General. He also listed Busia Senator Okiya Omtatah and activist Eliud Matindi as interested parties.

On the other hand, Kemunto, Frefgo and Wereh claimed that there was no meaningful public participation before the same was tabled before Parliament.

The trio said that Treasury Cabinet Secretary John Mbadi did not tell Kenyans the whole truth about the fund.

They asserted that the whole exercise was driven by deliberate deceit, and cover-up.

They argued that the fund should have been created within the Consolidated Fund and should have been established as an investment, regulated by the Capital Markets Authority(CMA).

They also said that the fund is illegal for locking out the Controller of Budget in the structure. “ The framework of the  National Infrastructure Fund is a mechanism for public

Borrowing,” they claimed, adding that it was unnecessary as the country has so many other ways to do infrastructure.

“Unless the implementation of the National Infrastructure Fund Act and or the impugned sections are not restrained by the grant of the Conservatory orders sought herein, the adjudicatory authority of this Honourable Court would be rendered an academic exercise, the constitutional values shall be violated and the Petitioners as the general public would suffer further violation of their constitutional rights,” they argued.

In their case, they sued Mbadi, the National Assembly, Senate and the Attorney General.

They also roped in Kenya Banks Association, CMA, the Law Society of Kenya (LSK), Katiba Institute and the Controller of Budget.

In her supporting affidavit, Kemunto said that the case was about the Sh 5 trillion, which will allegedly be the roadmap for development.

She expressed fear that the fund will not be managed by professionals.