The High Court in Nairobi on Tuesday declared the Privatisation Act 2023 unconstitutional in its entirety citing glaring loopholes in the piece of legislation.
In its ruling, the court declared the Act unconstitutional and therefore unlawful after it established the law was not subjected to adequate public participation.
The court also held that the Kenyatta International Convention Centre (KICC) was a national monument and a symbol of national heritage whose proposed sale violated constitutional and cultural rights.
"The Constitution is the supreme law, and the public must be involved in public participation. The National Assembly does not do the public a favour by inviting them to participate," the court stated.
In December last year, the Orange Democratic Movement (ODM) party moved to court to challenge the government's decision to privatise six out of eleven parastatals including KICC, Kenya Pipeline Company (KPC) and New Kenya Cooperative Creameries Limited (New KCC).
In their suit, the petitioners also challenged the sale of Kenya Seed Company Limited, the Kenya Literature Bureau(KLB) and the National Oil Corporation of Kenya.
ODM argued that President William Ruto's plan to privatise the above parastatals contravened the constitution and that the said organisations were the state's assets financed by the public.
Following the application, the court issued a conservatory order restraining the government from selling the six state agencies until the case was heard and determined.
While issuing the conservatory order, Justice Chacha Mwita noted that the opposition raised substantial constitutional and legal questions of public importance that require critical examination and consideration by the court.
The High Court also ordered the respondents, which included the National Treasury, to file responses to the petition within five days.
"A conservatory order is hereby issued suspending implementation of section 21(1) of the Privatisation Act 2023 and or any decisions made under that section, until February 6, 2024, given under my hand and seal of the Honourable court this 4th Day of December 2023," Mwita directed.
In November last year, the National Treasury announced plans to privatise 11 entities on grounds that some of the parastatals made losses despite immense funding by the government.
