Court battle deepens over proposed Nairobi-Nakuru highway toll charges as KeNHA challenges COFEK suit

The High Court is set to decide whether a constitutional petition challenging the proposed tolling of the Nairobi–Nakuru–Mau Summit (A8) Highway should proceed after the Kenya National Highways Authority (KeNHA) and the Ministry of Roads and Transport filed a preliminary objection seeking to have the case struck out. In their objection, KeNHA and the Roads Ministry argue that the petition filed by the Consumers Federation of Kenya (COFEK) is sub judice, saying the issues it raises are already before the High Court in Nakuru in Constitutional Petition No. E064 of 2025, Motorists Association of Kenya & 3 Others v Cabinet Secretary, Ministry of Roads and Transport & 5 Others. According to the respondents, both cases challenge the legality and constitutionality of the proposed Public Private Partnership (PPP) concession for the Nairobi–Nakuru–Mau Summit Highway and the Rironi–Maai Mahiu–Naivasha (A8 South) Road, including the proposed toll charge of KSh8 per kilometre and the lack of a toll-free alternative route. "The Petition offends section 6 of the Civil Procedure Act and is sub judice since the matters directly and substantially in issue are already pending before a court of competent jurisdiction," the preliminary objection states. The government also argues that COFEK failed to exhaust the dispute resolution mechanisms established under the Public Private Partnerships Act, 2021. It contends that disputes relating to PPP projects should first be presented to the Petition Committee established under the Act. "The Petitioner has neither invoked nor exhausted the statutory mechanism and has neither sought nor obtained exemption," the respondents argue. KeNHA and the Roads Ministry further maintain that the petition violates the constitutional principle of separation of powers by inviting the court to interfere with executive decisions on infrastructure development, budgeting and the implementation of PPP projects. They also argue that matters relating to infrastructure policy, budget allocation and the operationalisation of PPP projects are political questions that are non-justiciable and therefore fall outside the court's mandate. "The court cannot substitute its own discretion for the policy decisions of the Executive," the objection states. The respondents are asking the High Court to strike out or dismiss both COFEK's petition and the accompanying application, with costs. The preliminary objection follows orders issued by Justice David Mburu on July 15, 2026, certifying COFEK's application as urgent, directing the respondents to file their responses within three days and scheduling the matter for mention for further directions. COFEK's petition challenges the proposed 30-year user-pays tolling framework for the Nairobi–Nakuru–Mau Summit Highway. It argues that the proposed Sh8-per-kilometre toll lacks transparency and that motorists should be provided with a practical toll-free alternative route before the project is implemented.