Omtatah Urges High Court to Dismiss AG Objection in Kenya Pipeline Privatisation Case
NAIROBI, Kenya, Apr 10 – Busia Senator Okiya Omtatah and other petitioners have urged the High Court to dismiss a preliminary objection filed by the Attorney-General seeking to strike out their case challenging the government’s privatisation programme.
In submissions dated March 31, 2026, the petitioners argue that the Attorney-General’s application is legally flawed and aimed at shielding what they describe as unconstitutional executive actions from judicial scrutiny.
The case centres on the ongoing privatisation process, including that of the Kenya Pipeline Company, which the petitioners claim is being conducted in violation of the Constitution.
They fault the Attorney-General’s reliance on the doctrine of res judicata, arguing that the objection does not meet the legal threshold for a preliminary objection. According to them, determining whether the issues have already been decided would require a detailed examination of facts and previous court rulings, making it unsuitable for determination at a preliminary stage.
The petitioners maintain that their case introduces new constitutional questions, including the legality of the Privatisation Act, 2025, the alleged influence of the International Monetary Fund on government policy, and claims of financial irregularities involving KPC.
They also raise concerns over the legality of recent appointments to the Privatisation Authority and the use of a Sessional Paper, rather than legislation, to approve the privatisation process.
Further, the petitioners argue that earlier court decisions cited by the Attorney-General — including rulings made in 2026 — do not bar the case, noting that those decisions were issued by courts of equal jurisdiction and addressed narrower issues.
They reject claims that the petition amounts to an abuse of the court process, insisting it is grounded on new facts, fresh legal questions, and ongoing developments.
On the government’s position that the KPC privatisation process has already been concluded, the petitioners argue that the matter remains legally active and can still be challenged. They contend that courts have the authority to nullify decisions even after implementation if constitutional violations are established.
The petitioners also dismiss the argument that they should have first sought redress through administrative channels, stating that the issues raised are purely constitutional and fall squarely within the jurisdiction of the High Court.
Citing established legal principles, they urge the court not to summarily dismiss the case, noting that suits should only be struck out if they are plainly without merit.
Given the weight of the issues raised, the petitioners have asked the court to certify the matter as raising substantial questions of law and refer it to a bench of three or more judges.
They are seeking orders to dismiss the Attorney-General’s preliminary objection and allow the case to proceed to a full hearing.