NAIROBI, Kenya, Feb 4 – The National Treasury has defended the proposed National Infrastructure Fund (NIF), saying the planned vehicle is a government-owned company, not a constitutional public fund, and has not yet received or spent any public money.
In a replying affidavit filed at the High Court in Nairobi, Treasury Cabinet Secretary John Mbadi said the entity approved by Cabinet in December 2025 is intended to mobilise more than Sh5 trillion from both public and private sources to finance large-scale infrastructure, including transport, energy and food security projects.
The affidavit was filed in opposition to a petition seeking to block the establishment of the NIF, with petitioners arguing that the fund was created through executive fiat in violation of the Constitution and public finance laws.
Mbadi told the court that the NIF, though described as a “fund”, does not fall under Article 206 of the Constitution and is instead designed as a limited liability company under the Government Owned Enterprises Act, with full corporate personality and commercial governance structures.
“The entity being set up, though variously described as a ‘Fund’, is not a fund within the meaning of Article 206 of the Constitution,” Mbadi said.
“No public funds have been appropriated or expended as a result of the Cabinet approval.”
He added that the petition is premature, arguing that the process is still within the Executive arm of government and subject to internal technical, legal and financial reviews before being presented to Parliament for approvals where required.
According to the Treasury, the Cabinet approved the establishment of the National Infrastructure Fund PLC on December 15, 2025, and directed the National Treasury and the Attorney-General to take the necessary steps to operationalise it.
However, Mbadi said the entity has not yet been incorporated, and no irreversible decisions have been taken.
The Treasury maintains that parliamentary oversight will remain intact, noting that any funding to the entity would be approved through an Appropriations Act, cleared by the Controller of Budget and audited by the Auditor-General.
The case, filed by a group of petitioners and backed by the Law Society of Kenya and Katiba Institute as interested parties, raises fresh questions over the government’s push to use corporate vehicles to finance infrastructure while reducing reliance on public borrowing and taxation.
