A petition filed at the Milimani High Court seeks to compel disclosure of all tax exemptions and customs waivers granted for Chinese-backed infrastructure since 2008, including the SGR, Nairobi Expressway, and Lamu Port
By The Weekly Vision Reporter
A constitutional petition has been filed at the Milimani High Court seeking to compel the government to disclose publicly, and potentially unwind, more than a decade and a half of tax exemptions and customs-duty concessions granted to Chinese contractors on some of Kenya’s largest infrastructure projects, including the Standard Gauge Railway, the Nairobi Expressway, the Thika Superhighway and the Lamu Port Project.
The petition was filed by R. M. Mabeya & Co. Advocates on behalf of the African Centre for Corrective and Preventive Action on 14th August 2026. It names the Public Procurement Regulatory Authority (PPRA) and the Kenya Revenue Authority (KRA) as the first and second respondents, alongside 19 others, including the Kenya National Highways Authority (KeNHA), Kenya Railways Corporation and the Kenya Roads Board, who feature among the parties the petitioners seek orders against.
At the centre of the petition is a claim that an unpublished “contract-embedded tax-assumption framework” has been operating in respect of Chinese-financed bilateral infrastructure projects since at least 1st January 2008, without ever being gazetted or laid before Parliament. The petitioners contend that tax exemptions and customs-duty remissions granted under this framework, and any administrative directives or Treasury circulars used to implement it, were never published as legal notices, in breach of Articles 35, 201 and 210 of the Constitution, which govern the public’s right to information and the principles of public finance.
The petition further alleges that KRA’s administration of customs-duty exemptions under Items 5, 6 and 10 of the Fifth Schedule to the East African Community Customs Management Act (EACCMA), without any mechanism to audit, track or restrict the re-export or subsequent use of duty-free goods, is unconstitutional in its practical effect.
Taken together, the petitioners argue, the government has violated rights protected under Articles 27, 35, 47, 201, 210 and 227 of the Constitution, which cover equality, access to information, fair administrative action, public finance principles and fair, competitive public procurement.
The reliefs sought are unusually extensive for a single petition, and would, if granted in full, reshape how tax concessions on foreign-financed infrastructure are handled going forward. Among the orders requested:
- A declaration that the unpublished tax-assumption framework is unconstitutional, null and void.
- An order of certiorari quashing all administrative directives, Treasury circulars and KRA tax-reimbursement instructions that have operationalised the regime.
- An order of mandamus compelling the Treasury to publish, within 90 days of judgment, the full text of every tax exemption, customs remission or fiscal concession granted on Chinese-financed bilateral projects since 2008.
- A separate order of mandamus compelling KRA to conduct a full, verified audit of every duty-free vehicle, item of plant or equipment imported into Kenya since 2008 by non-resident contractors under the relevant customs schedule, and to publish a public inventory of where those items are now and who is using them.
- An order of prohibition barring KeNHA, Kenya Railways Corporation and the Kenya Roads Board from awarding any new road, transport or construction contract where the tender pricing depends on a duty-free or tax-exempt advantage unavailable to Kenyan contractors.
- General damages against the first three respondents, with the amount to be assessed following the requested inventory.
- A structural interdict requiring quarterly compliance reports to the court for three years.
- A declaration that Parliament’s own long-standing failure to legislate a disclosure framework for such concessions amounts to an unconstitutional legislative omission, with an accompanying order that any compliance plan filed by the respondents be tabled before the National Assembly and Senate, and that both Houses report back every six months for three years on the legislative steps taken.
If the petition succeeds even in part, it would represent one of the most significant public-finance transparency rulings involving Kenya’s Chinese-financed infrastructure programme to date. The SGR, the Nairobi Expressway, the Thika Superhighway and the Lamu Port Project rank among the largest and most politically significant infrastructure undertakings of the past two decades, financed substantially through Chinese state lending and built by Chinese state contractors.
Questions over the tax treatment of these projects, including duty waivers on imported equipment and materials, have periodically surfaced in public debate, but have rarely been tested in court at this scale.
A ruling compelling full gazettement of every tax concession granted since 2008 would, for the first time, give the public, and Kenyan contractors who have competed against duty-exempt foreign firms for related tenders, visibility into the scale of concessions granted over nearly two decades. The petitioners’ request for a Kenya Roads Board and KeNHA prohibition order, in particular, points to a broader concern about whether tax-exempt bidding has disadvantaged local contractors in the award of related road and transport contracts.
The petition also raises a novel constitutional argument: that Parliament itself has failed in its duty by never enacting a general law requiring disclosure of contract-embedded tax concessions, an omission the petitioners argue is itself unconstitutional.
Should the court entertain this line of argument, it could have implications well beyond the named Chinese-financed projects, potentially affecting how any future bilaterally financed infrastructure agreement is taxed and disclosed.
