Kenya courts test Ruto’s big plans

Keypoints:

Courts scrutinise major Ruto initiatives
Safaricom ruling disrupts financing strategy
Debt leaves government fewer options

KENYA’S courts are becoming an increasingly consequential force in President William Ruto’s economic programme, testing how far his administration can move on infrastructure, privatisation and executive authority without running into the constitutional guardrails established in 2010.

The stakes extend well beyond a confrontation between judges and the presidency. Ruto is seeking to mobilise KSh5tn (about $40bn) over a decade for roads, energy, water, irrigation and other infrastructure while reducing reliance on additional public borrowing and avoiding politically difficult tax increases. Court challenges are now adding another constraint to that financing equation.

Safaricom raises the stakes

The immediate flashpoint is Safaricom, Kenya’s biggest listed company and one of its most strategically important businesses.

The government completed the sale of a 15 percent stake to South Africa’s Vodacom in June for about $1.6bn. The transaction reduced the state’s holding to 20 percent and increased Vodacom’s effective interest in Safaricom to about 55 percent.

Alongside the share sale, the government agreed to receive KSh40.2bn (about $310m) upfront in return for future dividend rights attached to its remaining 20 percent shareholding. Parliament directed that proceeds from the divestiture be paid into the National Infrastructure Fund.

The share disposal and dividend arrangement together were designed to release substantial capital for the government’s infrastructure strategy.

Then came the High Court.

On September 15, the court invalidated the sale, finding that the transaction had not adequately involved the public and had involved concealment of material information. It ordered the 15 percent stake returned to the government.

The implications go beyond Safaricom.

Public participation is embedded in Kenya’s constitutional system, and the ruling reinforces the principle that major decisions involving public assets can be subjected to judicial scrutiny even after political and commercial approvals have been secured.

Treasury Cabinet Secretary John Mbadi said on September 16 that the government would appeal, insisting that the transaction had complied with the law and involved the public. Vodacom has also said it will appeal, while Safaricom said it was reviewing the High Court judgment and its implications.

The dispute is therefore far from legally settled.

Debt narrows Ruto’s room

The Safaricom ruling matters because Kenya has limited fiscal room.

Public debt stood at KSh12.32tn ($91.7bn at the March 2026 valuation), equivalent to 65.7 percent of GDP. Kenya’s Public Debt Management Office classifies the debt as sustainable but at high risk.

Debt servicing also consumes a large portion of government revenue. Reuters reported that annual repayments absorb about 40 percent of state revenue, increasing the pressure on Nairobi to find alternative ways of financing development.

That helps explain the administration’s increasing emphasis on private capital and asset monetisation.

Ruto’s KSh5tn infrastructure programme includes roads, expanded electricity generation, water storage and irrigation projects, with the National Infrastructure Fund intended to attract pension funds, development finance institutions and other private investors.

The government has explicitly argued that Kenya cannot indefinitely finance infrastructure through unsustainable borrowing or ever-higher taxation.

But taxation has already demonstrated its political risks.

The Finance Bill 2024 was intended to raise an additional KSh346.7bn ($2.68bn) through tax measures before nationwide protests led Ruto to withdraw the legislation.

Africa Briefing previously examined how Kenya’s debt pressures intensified after the Finance Bill reversal, while the subsequent sovereign-rating pressure highlighted the difficult fiscal trade-offs facing the government.

Borrowing carries debt risks. Higher taxes carry political risks. Privatisation and public-private partnerships can carry legal risks.

That is the increasingly narrow corridor through which Ruto’s development programme must move.

Courts test executive power

Safaricom is not an isolated case.

In July, the High Court nullified Ruto’s Presidential Task Force on the Forensic Audit of Public Debt, finding that its functions unlawfully overlapped with the constitutionally established responsibilities of the Auditor-General.

The decision was another example of the judiciary questioning not necessarily the policy objective itself, but whether the executive had used the constitutionally permitted route to pursue it.

In June, a three-judge High Court bench also ordered Ruto to reconstitute his Cabinet within 120 days after finding that its composition violated the Constitution’s two-thirds gender principle.

At the time of the ruling, seven of the 25 Cabinet members counted by the court were women, below the constitutional threshold. Parliament and National Assembly Speaker Moses Wetang’ula subsequently lodged a notice of appeal challenging parts of the judgment.

Another major dispute concerns presidential advisers.

In January, the High Court declared the creation of offices for 21 presidential advisers unconstitutional. The Attorney-General appealed.

On March 13, however, the Court of Appeal stayed execution of the High Court judgment pending determination of the intended appeal, allowing the advisers to continue serving while the substantive dispute proceeds. The appellate judges said disruption to the functions of the presidency could occur if the stay were refused and recommended that the appeal be heard as a priority because of its public importance.

That distinction is important: the High Court judgment exists, but its execution has been suspended while the appeal is pending.

Infrastructure deals face scrutiny

Large infrastructure arrangements have encountered similar legal resistance.

In October 2024, the High Court suspended a $736m electricity transmission agreement between state-owned Kenya Electricity Transmission Company and Adani Energy Solutions after the Law Society of Kenya challenged the project.

The challenge included arguments about whether the agreement had satisfied public-participation requirements under Kenya’s public-private partnership framework. A separate Adani proposal involving Nairobi’s main airport also became the subject of legal challenges.

Taken together, the disputes show how infrastructure, privatisation and public finance are increasingly intersecting with constitutional law.

That does not mean Kenya’s judiciary invariably blocks government policy. Individual decisions can be appealed, stayed or overturned as cases move through the judicial hierarchy.

What has changed is that constitutional procedure itself has become an economic variable.

Ruto pushes back

Ruto has publicly criticised some judicial decisions.

In January, he said certain rulings appeared to cross into what he described as ‘judicial overreach, or even tyranny’.

But he also made an important qualification: disagreement with judgments did not justify disregarding them. Ruto said his administration would continue using lawful appeals and pledged not to ignore court orders.

That makes the emerging contest more accurately understood as an institutional one rather than simply a personal confrontation between Ruto and Kenya’s judges.

The executive wants room to deliver its programme. Citizens and civil society organisations can challenge decisions. Courts decide whether the government has acted within constitutional and statutory boundaries.

Each institution is exercising powers assigned to it under Kenya’s constitutional framework.

Investors face another legal test

For foreign investors, Safaricom adds another dimension to transaction risk in Kenya.

Political approval, parliamentary endorsement and regulatory clearance may not necessarily end scrutiny when major public assets are involved.

A transaction can still face constitutional challenges concerning transparency, disclosure or public participation.

Safaricom demonstrates the scale of that uncertainty.

Vodacom completed the $1.6bn government share acquisition in June. Less than three months later, the High Court ordered that component of the transaction reversed.

That does not establish that Kenya is hostile to foreign capital.

It does mean constitutional compliance increasingly has to be treated alongside regulatory and commercial requirements when investors assess transactions involving public assets.

The same lesson applies to government.

Mobilising private capital more rapidly does not remove the constitutional procedures surrounding how state assets are sold or concessions awarded.

Constitutional economics

This is where the Safaricom dispute becomes much bigger than telecommunications.

Ruto’s challenge is increasingly one of constitutional economics: finding capital for development when debt constrains borrowing, voters constrain taxation and courts constrain the manner in which public assets can be monetised.

If appellate courts uphold the substance of the Safaricom judgment, future privatisations could face more demanding standards of disclosure, consultation and scrutiny before completion.

If the government succeeds on appeal, the resulting judgment could instead provide greater clarity on how much procedural latitude the executive and Parliament possess when disposing of state assets.

Neither outcome can yet be assumed.

What is already evident is that litigation is influencing the environment in which Kenya makes some of its biggest economic decisions.

The 2010 Constitution was designed partly to disperse political power and strengthen restraints on executive action. Sixteen years later, those checks are colliding with an administration seeking to mobilise capital rapidly for an ambitious development programme.

Ruto wants Kenya to build more without reproducing the borrowing pressures that have narrowed fiscal space.

The Finance Bill protests demonstrated the political constraints on raising taxes. Safaricom is now testing whether selling public assets provides a less contentious route.

There may be no easy route.

The central question is whether the government can raise capital quickly enough to deliver its infrastructure ambitions, cheaply enough to avoid worsening Kenya’s debt burden and transparently enough to survive judicial scrutiny.

How that balance is resolved will help shape both Kenya’s development financing model and the practical reach of its constitutional checks on executive power.