The entire Privatisation Act, 2023 is unconstitutional, null and void.

The entire Privatisation Act, 2023 is unconstitutional, null and void.

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The decision to privatise the Kenyatta International Conference Centre (KICC), a national monument, is unconstitutional, unlawful, and null and void.

1. On 9th October 2023, the President assented to the Privatisation Bill, 2023 as the Privatisation Act, 2023 (the Act) with a commencement of 27th October 2023. The Act repealed the Privatization Act, 2005.

2. The Cabinet Secretary for Treasury and Planning (CS Treasury) then published a privatization programme, (the programme), identifying 10 public entities for privatization, under section 21 of the Act. Members of the public were invited to submit their views on the programme.

3. The entities identified for privatisation were; Kenyatta International Convention Centre (KICC); Kenya Pipeline Company (KPC); the New Kenya Cooperative Creameries (New KCC); Kenya Literature Bureau (KLB); National Oil Corporation of Kenya (NOCK); Kenya Seed Company Limited (KSC); Mwea Rice Mills Ltd (MRM); Western Kenya Rice Mills (WKRM); the New Kenya Cooperative Creameries Limited (NKCC); Numerical Machining Complex Limited (NMC) and Kenya Vehicle Manufacturers Limited (KVM).

4. The proposed privatisation programme generated intense public interest and three petitions were filed challenging the constitutionality of the Act as well as a number of sections the Act. The petitions are Nos: E 491 of 2023 by Orange Democratic Movement Party; E 010 of 2024 by Gitahi Ngunyi and E 025 of 2024 by Katiba Institute, Institute of Social Accountability and African Centre For Open Governance. The petitions were consolidated with petition E491 of 2023 designated as the lead file. For purposes of this judgment, the petitioner in E491 of 2023 will be the 1st petitioner, petitioner in E010, the 2nd petitioner and petitioners in E025, the 3rd, 4th and 5th petitioners.

5. The petitions are against Speaker of the National Assembly, the Cabinet Secretary, Ministry of Finance and Planning; the Attorney General; National Assembly; Auditor General and the Senate, as the respondents. Henceforth they will be referred to as the 1st to the 6th respondents, respectively.

1st petitioner’s case -E 491 of 2023

6. The 1st petitioner argues that the legislative process leading to the enactment of the Act was unconstitutional as there was no meaningful public participation. That is, the 4th respondent violated Articles 10(2) (a) and 118(1) (b) of the Constitution and Standing Order No. 127(3) of its Standing Orders.

7. In this respect, the 1st petitioner argues that the purported public participation was not reasonable, meaningful and efficient and that the respondents have not shown that the invitation letters dated 16th August 2023 for stakeholder engagement by the 4th respondent was extended to the public at large. Out of the six special invitees, the report of the Departmental Committee that recommended adoption of the report shows that most of those invited were government entities with four being private entities that stood to benefit from privatisation. Not a single citizen submitted views or memorandum on the Act.

8. The 1st petitioner argues that the invitation for submission of memoranda was limiting and may not have reached majority of Kenyans who cannot afford newspapers. The 1st petitioner

relies on Articles 10 and 118 of the Constitution; Standing Order No. 127(3) of the National Assembly Standing Orders and decisions in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] e KLR (British American Tobacco Kenya case) and Robert N. Gakuru & Others v Governor Kiambu County & 3 others [2014] e KLR, on public participation.

9. The 1st petitioner urges the court to adopt a purposive interpretation of national values and principles of good governance which require that all legislation conform to their objects and intendments. Their significance cannot be subjective to economic perspectives of privatization. In this respect, the 1st petitioner relies on the decisions in Stephen Wachira Karani & another v Attorney General & 4 others [2017] e KLR; United States International University (USIU) v Attorney General [2012] e KLR; and Independent Electoral and Boundaries

Commission (IEBC) v National Super Alliance (NASA) Kenya & 6 others, Civil Appeal No. 224 of 2017; [2017] e KLR, for the argument that, contrary to the argument that the Constitution does not support sentimental attachments as a consideration in the legislative functions of the National Assembly, there is an enduring duty on all state agencies to give effect to the underlying values and principles. In doing so, the 4th respondent has to take into account the history of the country, the issues in dispute, and the prevailing circumstances.