NAIROBI, Kenya — The High Court has lifted conservatory orders that had temporarily blocked the establishment of the proposed Sh5 trillion National Infrastructure Fund (NIF), handing the government a significant legal reprieve shortly after Parliament approved legislation creating the fund.
Justice Bahati Mwamuye of the Constitutional and Human Rights Division sitting at the Milimani Law Courts set aside the orders on Friday following new developments presented in court.
The proceedings had just begun when lawyers informed the court that the National Assembly of Kenya had passed the National Infrastructure Fund Bill in a late-night sitting, fundamentally changing the legal context of the petitions challenging the proposed fund.
Senior Counsel Eric Theuri, representing the Consumers Federation of Kenya (COFEK), was the first to notify the court about the parliamentary decision.
“My Lord, I have just learned that the National Assembly approved the National Infrastructure Fund Bill last evening,” Theuri told the court.
He argued that the new development directly affected issues raised in the consolidated petitions challenging the fund and urged the court to allow parties time to review the legislation before proceeding with further arguments.
“In view of that development, and noting that some of the issues arising in this petition relate squarely to the establishment of the National Infrastructure Fund, it would be prudent that we take time to review what has been passed in Parliament and then return for directions on how to proceed,” he said.
Theuri further cautioned the court against continuing with oral submissions, saying it could lead to wasted judicial time if the legal issues had effectively changed following the passage of the bill.
“It might not be a good usage of time, especially your time, My Lord, if we were to proceed with the highlighting of submissions only to later find that the exercise has become largely academic,” he added.
Following the submissions, Justice Mwamuye issued a brief ruling lifting the key conservatory orders that had been granted on December 24, 2025.
The orders had barred the government from establishing, registering, operationalising, funding or in any way implementing the National Infrastructure Fund.
The judge explained that when the court issued the ex parte orders, the proposed fund had not yet reached the legislative stage.
“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 tabled before the National Assembly, this court lifts Order Number One of the orders issued on December 24, 2025,” he ruled.
The orders had been issued in response to two petitions filed by COFEK and another by Dr Magare Gikenyi, Eliud Matindi, and other petitioners who questioned the legality and constitutional foundation of the proposed fund.
With the lifting of the orders, the government is now free to proceed with steps toward establishing the National Infrastructure Fund.
However, the constitutional petitions challenging the fund’s legality remain pending before the High Court.
