A fresh legal storm has hit the newly enacted Privatization Act, 2025, after two petitioners moved to the High Court seeking to stop its implementation, arguing that the law endangers Kenya’s sovereignty and violates fundamental constitutional safeguards.
In an urgent application, Omar Faruk Maalim and Abdulhakim Dahir Sheikh want the court to issue conservatory orders blocking the National Assembly, the Attorney General, and the Cabinet Secretary for National Treasury and Economic Planning from operationalizing the Act. They argue that the law which was signed by the President on October 15, 2025, and effective from November 4, 2025, was hurriedly passed by Parliament without “meaningful public participation”.
The petitioners argue that Parliament violated Articles 10 and 118 of the Constitution, which make provision for public participation in the making of laws. While the National Assembly published a notice on August 7, 2025, calling upon Kenyans to file their views, they point out that no member of the public did so. Instead, feedback came only from four stakeholder groups: ICPAK, PwC, KEPSA, and the Law Society of Kenya.
They also fault Parliament for failing to use its widely followed social media platforms to invite broader feedback. According to the petitioners, the so-called public participation forums allegedly conducted in all 47 counties remain questionable, as there is no proof of attendance, no documented procedures, and no minutes capturing what was discussed.
They argue that these gaps fall “drastically below the constitutional standard” for reasonable civic engagement.
Beyond procedure, the petitioners raise deeper concerns about the substance of the law. They warn that the Act grants “excessive and unchecked powers” to the Cabinet Secretary for Treasury. They point to Section 21(1), which allows the CS to unilaterally identify and determine which public entities should be privatized, a move they say sidelines Parliament and erodes public oversight.
They also claim that the said Act paves the way for an unconstitutional transfer of sovereign power from citizens to “private, unelected, and unaccountable corporate entities.”
They caution that privatizing critical infrastructure such as water, energy, ports, transport, and telecommunications could put essential national assets under profit-driven control.
The petition further warns that privatization may create private monopolies, undermine state authority, and result in the undervaluation and sale of strategic assets. They add that the move threatens socio-economic rights under Article 43, likely to make essential services such as health, education, housing, and sanitation unaffordable for millions.
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