High Court Dismisses Bid to Halt KPC Privatisation, Allows IMF Question to Proceed

By Maurice Momanyi

The High Court of Kenya has dismissed most of a petition challenging the privatisation of the Kenya Pipeline Company (KPC), ruling that the issues raised have already been determined by previous court decisions, but allowed one constitutional question relating to the International Monetary Fund (IMF) to proceed to full hearing.
In a ruling delivered on Thursday, Justice Patricia Nyaundi Mande held that earlier judgments had conclusively settled the constitutionality of the Privatisation Act, 2025, the legality of KPC’s privatisation process, and the validity of Gazette Notice No. 8739 of 2009, which listed KPC among state corporations earmarked for privatisation.
The petition, filed by Okiya Omtatah Okoiti and others, had sought conservatory orders to stop the privatisation, suspend the Privatisation Act, 2025, compel disclosure of government documents relating to the sale, and have the matter heard by a multi-judge bench.
Justice Mande ruled that the doctrine of res judicata barred the court from reopening issues that had already been conclusively determined in earlier public-interest litigation.
“The doctrine of res judicata exists to prevent parties from litigating instalments,” the judge observed, noting that constitutional disputes must also be brought to a final conclusion and cannot be revived under different arguments or by different litigants.
The court found that previous judgments had already upheld the constitutionality of the Privatisation Act, affirmed that privatisation as a concept does not violate the Constitution, and validated the legal framework underpinning the KPC transaction.
However, Justice Mande held that one issue remained unresolved: whether the proposed privatisation of KPC was primarily driven by IMF loan conditions rather than an independent sovereign decision by the Kenyan government, potentially violating the people’s sovereignty under Article 1 of the Constitution.
Although the respondents argued the case had become moot because KPC’s Initial Public Offering (IPO) had already been completed and the company listed on the Nairobi Securities Exchange, the judge ruled that the remaining IMF-related question raises a matter of public interest deserving determination on its merits.
The court declined to certify the matter for hearing by an expanded bench, finding that the surviving issue did not raise a substantial question of constitutional law requiring empanelment under Article 165(4) of the Constitution.
Justice Mande also refused to issue conservatory orders, saying the privatisation process had already been completed and no imminent constitutional harm had been demonstrated that would justify interim relief.
However, the court directed the Attorney-General and other government respondents to provide the petitioners, within 21 days, with documents related to the KPC privatisation. These include valuation reports, Cabinet memoranda, procurement records, parliamentary approvals, and documents relating to IMF agreements connected to the privatisation process.
As the case concerns matters of public interest, the court ordered each party to bear its own costs.