The Court of Appeal has reversed a High Court ruling that had declared the entire National Government Constituencies Development Fund (NG-CDF) Act, 2015, unconstitutional.
In a judgment delivered on Friday, February 6, the appellate court found that the High Court erred in its constitutional interpretation and in the remedies it issued.
A three-judge bench made up of Court of Appeal President Justice Daniel K. Musinga, Justice Francis Tuiyott, and Justice A. O. Muchelule nullified the High Court’s decision and decree that had been issued on September 20, 2024.
The appellate judges determined that the High Court improperly invalidated the entire law without conducting a thorough constitutional analysis grounded in text and principle, particularly with respect to matters of public finance, devolution, and the separation of powers.
The Court of Appeal held that the case before the High Court had not been overtaken by events despite amendments made to the NG-CDF Act in 2022 and 2023.
It also found that the law does not undermine the framework or principles of devolution, nor does it breach the constitutional allocation of roles between the national and county governments.
Court of Appeal overturns High Court ruling that declared NG-CDF unconstitutional
Regarding the doctrine of separation of powers, the appellate court disagreed with the High Court’s conclusions and ruled that only Section 43(9) of the Act was unconstitutional.
The provision, which linked the tenure of a constituency fund manager to the lifespan of Parliament and electoral transition timelines, was found to violate the principle of separation of powers and was therefore removed from the statute.
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The judges also dismissed the High Court’s finding that the NG-CDF Act conflicted with constitutional principles governing public finance.
They stressed that courts should not strike down legislation based on speculative or hypothetical concerns, noting that the NG-CDF is part of national government expenditure approved by the National Assembly through the Appropriations Act.
In addition, the court pointed out that the NG-CDF Act establishes several levels of financial oversight, including compulsory accounting procedures, audits by the Auditor-General, and supervision by Parliament.
In overturning the High Court ruling, the appelate criticized the trial court for failing to properly compare the contested provisions with the Constitution and for not clearly demonstrating how the Act contravened constitutional standards.
Referring to the United States Supreme Court decision in U.S. v. Butler (1936), the judges emphasized that courts neither endorse nor reject legislative policy but are limited to determining whether laws meet constitutional requirements.
The decision follows an appeal by the National Assembly challenging the High Court judgment of September 24, 2024, which had declared the NG-CDF Act, 2015 unconstitutional.
High Court bars assent of Constitution of Kenya (Amendment) Bill
The High Court had in June 2025 also issued fresh orders in a constitutional petition filed by Katiba Institute challenging the Constitution of Kenya (Amendment) Bill, No. 4 of 2025, which sought to anchor the National Government Constituencies Development Fund (NG-CDF), the Senate Oversight Fund, and the National Government Affirmative Action Fund (NGAAF) in the Constitution.
Katiba Institute opposed the proposed law, describing it as an attempt by Members of Parliament to amend the Constitution through a process it argued was unnecessary.
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In its court filings, the lobby group maintained that the proposed amendment was “constitutionally superfluous, as the funds it seeks to establish are inconsistent with the letter and spirit of the Constitution.”
Justice Lawrence Mugambi, in a ruling delivered on Thursday, June 5, barred Parliament from forwarding the Constitution of Kenya (Amendment) Bill to President William Ruto for assent.
The judge granted interim conservatory orders after allowing Katiba Institute’s oral application seeking to stop transmission of the Bill to the President pending the hearing and determination of the case.
The decision meant that while Parliament remained free to debate and consider the Bill, it could not transmit it for presidential assent until the court resolved the matter.
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