NAIROBI, Kenya — Senior Advocate of the High Court Willis Evans Otieno has questioned the legality of President William Ruto’s Cabinet decision to approve the establishment of a Sh5 trillion National Infrastructure Fund, warning that the move risks violating constitutional and statutory safeguards on public finance.
In a pointed critique shared on social media, Otieno said the Cabinet lacks the authority to unilaterally create a public fund with spending powers, describing the approval as legally defective unless backed by parliamentary consent.
“The Cabinet can only approve policy and frameworks; it cannot create a new public fund with spending authority by itself,” Otieno said. “The law states that a national government public fund may only be established by the Cabinet Secretary with the approval of the National Assembly.”
His comments follow a Cabinet dispatch issued on Monday, December 15, announcing that the government had approved the National Infrastructure Fund and the Sovereign Wealth Fund as part of President Ruto’s broader plan to mobilise domestic resources, accelerate development, and position Kenya as a “first-world” economy.
According to the dispatch, the National Infrastructure Fund has been approved as a limited liability company and is intended to act as a central vehicle for mobilising and deploying capital into priority infrastructure projects.
The government said the fund would rely on “creative financing,” including proceeds from privatisation, national savings, and capital markets, rather than traditional taxation.
The Sovereign Wealth Fund, also approved by Cabinet, is designed to manage revenues from mineral and petroleum resources, dividends from public investments, and a portion of privatisation proceeds, with an inter-generational savings model aimed at strengthening fiscal discipline and long-term economic resilience.
However, Otieno’s intervention has reignited debate over whether the executive is seeking to sidestep Parliament in establishing entities that will control vast public resources.
Under Kenya’s public finance framework, including the Constitution and the Public Finance Management Act, the establishment of national government public funds requires a clear legal basis and approval by the National Assembly.
Legal experts say this requirement is intended to safeguard oversight, accountability, and transparency in the management of public money.
Other planned investments include the expansion of oil pipelines, revamping of the ports of Mombasa and Lamu, upgrades to airports, and the addition of at least 10,000 megawatts of power over the next seven years through geothermal, hydro, solar, wind, and nuclear sources.
The government has said both funds will be professionally and independently managed under strict governance structures, with the National Infrastructure Fund overseen by a competitively appointed board and chief executive, while the Sovereign Wealth Fund will operate under a defined policy framework.
But critics argue that governance assurances cannot substitute for constitutional compliance.
Otieno’s concerns echo wider apprehension from sections of civil society, economists, and opposition figures, who have accused the administration of pursuing headline-grabbing economic announcements without first anchoring them in law.
President Ruto has defended his approach as necessary to unlock growth, create jobs, and reduce reliance on debt, insisting Kenya must move with speed to transform its economy.
Yet the legal questions now raised are likely to shift the debate from ambition to procedure, and from rhetoric about “first-world” status to the constitutional limits of executive power.
