President William Ruto received a major legal reprieve after the High Court lifted conservatory orders that had temporarily blocked the establishment and operationalisation of the proposed Sh5 trillion National Infrastructure Fund (NIF), hours after Members of Parliament passed the National Infrastructure Fund Bill in a late-night sitting that dramatically changed the legal landscape overnight.
Justice Bahati Mwamuye of the Milimani High Court’s Constitutional and Human Rights Division lifted the blocking orders Friday morning, in proceedings that were upended almost immediately after they began when Senior Counsel Eric Theuri broke the news of Parliament’s overnight action to a court that had assembled to hear oral submissions in the two consolidated petitions challenging the fund.
The ruling hands the Ruto administration a significant victory in its push to establish the NIF, a vehicle the government intends to use to pool and deploy proceeds from the planned divestiture of state assets, including government stakes in Safaricom and the Kenya Pipeline Corporation, assets whose sale has itself been mired in controversy.
The conservatory orders, issued by Justice Mwamuye on December 24, 2025, had restrained the government from establishing, incorporating, registering, operationalising, or funding the NIF in any manner.
They were issued in two petitions filed by the Consumers Federation of Kenya (COFEK) and filed by Dr. Magare Gikenyi, Eliud Matindi and two others, both of which argued that the government was moving to set up the fund outside proper constitutional parameters.
Yesterday, those orders fell, undone in large part by Parliament’s own overnight action.
The morning’s dramatic sequence began the moment Lawyer Theuri, appearing for COFEK, rose to address the court, not to argue his client’s case, but to inform Justice Mwamuye that the ground had shifted entirely overnight.
“My Lord, I have just learned that the National Assembly has approved the National Infrastructure Fund Bill last evening,” Theuri told the court.
“In view of that development, and noting that some of the issues arising in this petition relate squarely to the issue of the establishment of the National Infrastructure Fund, I think it would be prudent that we take some time to review what has been passed in Parliament and then come back and take directions on how we are going to proceed.”
He urged the court against proceeding with submissions.
“It might not be a good usage of time, especially your time, My Lord, if we were to proceed with the highlighting of the submissions and then find that perhaps the exercise we have engaged in is largely academic in nature,” Theuri said.
Justice Mwamuye moved swiftly, delivering a short ruling that lifted the key blocking order in both petitions, reasoning that leaving the orders in place would ironically work against the petitioners themselves by barring them from seeking fresh legal redress.
“Noting the developments in this matter, and in light of the fact that when this court issued an ex parte conservatory order, the matter was at a juncture where no bill had been drafted or much less tabled before the National Assembly, this court lifts Order Number One of this court’s orders and directions dated and issued on 24th December 2025 in both petitions E834 of 2025 and E835 of 2025,” the judge ruled.
“The court takes this measure to facilitate the respective petitioners to take necessary actions as they so wish, and to prevent any person from moving courts in a fresh petition. if they so wish, being barred,” he added.
The judge noted pointedly that the petitioners themselves had confirmed the bill passed in Parliament was not covered by the petitions on their face.
“So those orders are lifted,” he said.
