NAIROBI, Kenya – The High Court has declared Sections 59, 60 and 72(1) of the Public Private Partnerships (PPP) Act, 2021 unconstitutional, ruling that Parliament cannot be excluded from approving PPP projects that create financial obligations for the national government.
The judgment was delivered on September 17, 2026, in a petition filed by Katiba Institute, which challenged the legal framework governing the approval of major PPP projects, including the proposed concessions involving Jomo Kenyatta International Airport (JKIA) and Kenya Electricity Transmission Company (KETRACO).
The court, however, suspended the effect of the declaration for six months, giving Parliament time to amend the law and bring it into conformity with the Constitution.
Court says Parliament must approve PPPs creating public liabilities
The court found that Sections 59, 60 and 72(1) are unconstitutional to the extent that they exclude Parliament from approving PPP projects that create public expenditure, guarantees, public debt, borrowing or other public liabilities for the national government.
The decision centres on Parliament’s constitutional responsibility over public finances.
Article 95(4)(c) of the Constitution gives the National Assembly the mandate to exercise oversight over national revenue and its expenditure. The High Court held that this constitutional role cannot be displaced by legislation giving approval powers to an executive body.
The court’s reasoning means that structuring an infrastructure project as a PPP does not, by itself, remove parliamentary scrutiny where the arrangement ultimately creates financial obligations for the State.
PPP Committee had approval powers
Under the 2021 PPP Act, the PPP Committee was given a central role in approving PPP projects and related financial-risk assessments.
Section 59 deals with approval of project and financial risk assessment reports, while Section 60 concerns approval of projects. Section 72(1) provides that amendments, variations or waivers to project agreements require approval by the PPP Committee and the Attorney-General.
The court found that these provisions were unconstitutional insofar as they failed to provide for parliamentary approval when a PPP creates expenditure, borrowing, guarantees, public debt or other public liabilities.
Katiba Institute challenged PPP framework
Katiba Institute filed the petition in November 2024, challenging provisions of the PPP Act and arguing that the law improperly excluded Parliament from decisions involving significant public financial commitments.
The petition arose against the backdrop of proposed PPP arrangements involving JKIA and KETRACO, including transactions associated with India’s Adani Group.
Although the JKIA and KETRACO arrangements had been cancelled by the time the petition was heard, the court found that the broader constitutional questions remained relevant and declined to treat them as moot.
The court ultimately allowed the constitutional challenge in part.
Court warns on privately initiated PPP proposals
The judgment also addressed privately initiated proposals (PIPs), under which a private party can initiate a proposal for a PPP project.
The court said any discretion exercised under the PPP Act in relation to procurement must comply with Article 227 of the Constitution, which requires public procurement systems to be fair, equitable, transparent, competitive and cost-effective.
The court noted that statutory provisions allowing different procurement procedures do not shield their application from constitutional scrutiny. Where a contracting authority departs from competition without objective justification, acts opaquely or fails to secure value for money, the resulting decision may still be unconstitutional.
Parliament given six months to amend PPP Act
Despite declaring the three sections unconstitutional, the court did not immediately invalidate them.
The declaration of invalidity has been suspended for six months to allow Parliament to make the necessary amendments.
The court also directed that the matter be mentioned on May 11, 2027, to confirm compliance and give further directions. Because the case was public-interest litigation, each party was ordered to bear its own costs.
The suspension means the ruling does not immediately bring Kenya’s PPP framework to a halt. Instead, Parliament has a six-month window to establish a framework that provides for parliamentary approval of PPP projects that create public financial obligations.
Katiba Institute urges swift legislative action
Katiba Institute has urged Parliament to act quickly to amend the PPP Act in line with the High Court’s findings.
The judgment establishes that PPP structures cannot be used to remove Parliament’s constitutional role where projects involve government expenditure, guarantees, borrowing, public debt or other public liabilities.
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