Kenya: High Court mandates parliamentary oversight of PPPs involving the state

The High Court of Kenya ruled on Thursday, September 17, that three provisions of the Public Private Partnerships Act are unconstitutional as they exclude Parliament from approving projects that create expenditures, guarantees, debt, or other financial obligations for the state. However, the declaration of invalidity is suspended for six months to allow Parliament time to amend the legislation.

The ruling specifically targets Articles 59, 60, and 72(1) of the Public Private Partnerships Act of 2021. The court determined that the structure of a public-private partnership cannot exempt elected officials from constitutional oversight of financial commitments that may be borne by taxpayers. Therefore, the judgment does not automatically subject all PPPs to a parliamentary vote, but rather those that effectively engage public finances.

The case was brought by the Katiba Institute in the context of concession projects involving Jomo Kenyatta International Airport and the state-owned electricity transport company Ketraco. Projects linked to the Indian group Adani had been abandoned prior to the ruling, but the High Court found that issues of public financial oversight and institutional accountability remained to be resolved.

Conversely, the court rejected the request to eliminate the mechanism for proposals initiated by the private sector. It noted that authorities may use procedures other than open bidding when legally justified, while still being bound by constitutional requirements for transparency, fairness, competition, and value for money.

According to the ruling, 31 public-private partnership projects are at various stages of preparation in Kenya. The suspension of the invalidity prevents an immediate disruption of the current framework while Parliament prepares the necessary legislative corrections.

The High Court has scheduled a new hearing for May 11, 2027, to verify compliance and provide any additional guidance. Each party will bear its own costs in this public interest proceeding.