The Consumer Federation of Kenya (Cofek) has gone to the High Court seeking to block the government’s proposal to charge motorists Sh8 per kilometre to use the Nairobi-Nakuru-Mau Summit and Rironi-Maai Mahiu-Naivasha highways, arguing the toll cannot be imposed without a free alternative route.
Cofek contends that the government has no right to compel road users to pay an additional charge for using an existing, taxpayer-funded highway unless a practical toll-free option is made available. The corridor in question is the main link between Nairobi, the North Rift, Western Kenya and the wider East African region, carrying a significant share of passenger, fuel, agricultural and manufactured goods traffic along the route.
“Any mandatory user charge imposed upon the said corridor is likely to affect millions of consumers, motorists, transporters, farmers, traders, manufacturers and members of the public who rely upon the corridor daily,” Cofek says in its court papers.
On Monday, Milimani High Court Judge David Mburu declined to grant an immediate order halting the toll plan and instead transferred the case to the High Court in Kisumu, where related petitions on the same issue are already being heard.
“Since there is consensus from the parties, this matter is transferred to the Kisumu High Court, which is handling similar petitions dealing with the same subject matter. The matter shall be mentioned before the Presiding Judge at Kisumu on July 30 for further directions,” the judge ruled.
The project at the centre of the dispute involves a proposed 30-year public-private partnership tolling arrangement covering 233 kilometres between Rironi and Mau Summit, and a further 58 kilometres between Rironi and Naivasha via Maai Mahiu.
According to the Kenya National Highways Authority (KeNHA), the roads are to be upgraded and expanded under a design-build-finance-operate-maintain-transfer model, with tolls charged to motorists once the works are complete.
President William Ruto launched the project in November last year. It was later divided into two separate sections after talks with one contracting consortium collapsed. Construction is expected to take two years, at a cost of $863 million (Sh111.7 billion).
Cofek argues the proposed tolling framework raises significant constitutional concerns around transparency, consumer protection and equality before the law, noting that the government has not made public how it settled on the Sh8-per-kilometre charge, nor has it offered motorists an alternative free route. The lobby further warns that the toll will drive up costs well beyond the highway itself.
“The resulting financial burden is likely to cascade throughout the supply chain, leading to increased transport costs, higher consumer prices and a corresponding rise in the overall cost of living,” Cofek secretary-general Stephen Mutoro states in an affidavit supporting the petition.
Mutoro also urges the court to act swiftly, warning that further delay could allow the toll project to move forward regardless of the constitutional issues raised.
“Unless this court intervenes, the respondents are likely to continue undertaking further approvals, negotiations, contractual engagements and other implementation measures capable of creating binding legal, financial and commercial obligations before the constitutional questions raised in the accompanying petition are determined,” he argues.
The government has already moved to have the petition struck out, filing a preliminary objection arguing that the matter is sub judice, given that a similar case brought by the Motorists Association of Kenya and others is already pending before the High Court in Nakuru.
KeNHA and the Ministry of Roads also argue that Cofek failed to exhaust the dispute-resolution mechanisms set out under the Public-Private Partnerships Act before approaching the court.
They further contend that the petition improperly asks the judiciary to overstep into matters reserved for the Executive.
“The Petition offends the principle of separation of powers in that the Petitioners invite the court to interfere with the Executive’s mandate concerning development/infrastructure policy, national budgeting and the implementation of Public-Private-Partnership frameworks,” KeNHA and the Ministry stated in their application to strike out the case.
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