Busia senator Okiya Omtatah and two others have challenged an Act that grants the International Monetary Fund (IMF) and the World Bank immunity from court proceedings, taxation and disclosure, arguing that it undermines Kenya’s constitutional order.
Mr Omtatah, together with activists Bernard Muchiri and Naomi Misati, moved to the High Court to challenge the Bretton Woods Agreements Act, saying the law, enacted in 1963, is incompatible with the Constitution.
The petitioners argue that the Act gives the Executive sweeping powers to enter into international financial agreements, borrow money and commit public funds without adequate parliamentary oversight while shielding the IMF and the World Bank from accountability before Kenyan courts.
According to the petition, the law creates “a closed loop of unaccountable financial governance” that violates the Constitution by allowing the Executive to accept international agreements, incur debt and spend public funds while protecting the institutions receiving the funds from judicial scrutiny.
The three contend that Section 5 of the Act incorporates provisions of the IMF and World Bank agreements into Kenyan law, granting the two institutions immunity from every form of judicial process, taxation, search, seizure and confiscation.
They argue that these protections deny Kenyans their constitutional rights to access justice, a fair hearing and information.
“The petition raises fundamental and urgent questions of constitutional importance concerning the validity of the Bretton Woods Agreements Act, a statute enacted in 1963, whose continued operation in the post-2010 constitutional dispensation is unconstitutional,” the petition states.
The petitioners further argue that the Act allows the Executive to implement international agreements without parliamentary approval under Section 3, while Section 4 authorises payments to the IMF and the World Bank directly from the Consolidated Fund without annual appropriation by Parliament.
They also fault provisions allowing Treasury Cabinet Secretary to borrow money “on such terms as he may think fit,” saying they are inconsistent with the constitutional framework governing public borrowing and management of public finances.
According to Omtatah, the combined effect of the Act is that the Executive commits Kenya to international obligations, borrows funds, authorises payments from the Consolidated Fund and shields the beneficiary institutions from legal action.
The petitioners argue that such an arrangement weakens judicial oversight, limits Parliament’s control over public finance and undermines constitutional safeguards on accountability.
The petition further claims that the law violates various articles of the constitution including Articles 1, 2, 94, 159 and 165, as well as the provisions of Chapter Twelve on public finance.
According to the petitioners, the Act effectively amends the Constitution without following the amendment procedures set out under Articles 255, 256 and 257.
They also argue that the absolute immunity granted to the IMF and the World Bank fails the constitutional test of proportionality under Article 24 because it limits the right of access to justice without providing effective alternative remedies.
According to the petition, every day the law remains in force, public funds remain exposed to unaccountable expenditure while Kenyans continue to be denied effective legal remedies against the two international financial institutions.
They maintain that the continued operation of the Act poses an imminent threat to the constitutional order, the rule of law and the effective functioning of Parliament and the Judiciary.
The petition also raises what the applicants describe as novel constitutional questions, including whether a pre-2010 statute can continue to authorise executive treaty implementation, unrestricted borrowing powers and broad institutional immunities without being aligned to the Constitution.
The High Court has directed the respondents and interested parties to file and serve their responses to both the application and the petition within 14 days.
The matter will be mentioned on September 29, 2026, to confirm compliance and for further directions.
