The Court of Appeal has issued a ruling on key laws governing the Road Maintenance Levy Fund (RMLF) following an earlier ruling by the High Court of Kenya that declared key laws governing RMLF unconstitutional.
In June 2025, High Court judge Justice Lawrence Mugambi gave a green light for county governments to share out Ksh10.522 billion from the RMLF, declaring that the decision of the National Assembly to exclude county governments as beneficiaries of the conditional grants derived from the fund was unconstitutional.
The Court of Appeal has, however, suspended the implementation of the High Court decision, and granted conservatory orders and a stay of execution and implementation of orders (a), (b), (c), and (d) of the High Court judgment.
Delivered by the appellate court’s President Justice Daniel Musinga and two other judges on Friday, July 25, the ruling temporarily halts the landmark judgment that would have dismantled the current framework for road maintenance funding and crippled the operations of national roads agencies.
Court of Appeal issues ruling on RMLF
The judges handed Parliament a 12-month grace period to align road funding and classification laws with Kenya’s devolved system of governance.
According to the ruling, this period is intended to allow the appellants to prosecute their appeal and, critically, to enable Parliament to develop an appropriate legislative framework to align the laws with the Constitution.
KRB had disbursed Ksh3.683 billion to county governments under the RMLF following the High Court ruling. However, counties were expecting an additional Ksh6.839 billion — which they argued should be paid out immediately.
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The Court of Appeal did not order the payment of the remaining Ksh6.82 billion to the counties, noting the absence of a High Court directive and the existence of a cross-appeal on the matter.
“In the petition, the 1st to 5th respondents had urged the High Court, upon declaring sections 47 of the Kenya Roads Act, Cap 408 and section 6 of the Kenya Roads Board Act, Cap 408 A unconstitutional, to grant the legislature a period of at least 12 months to implement any legislature interventions. Taking into consideration all the relevant factors that we have pointed out, we are satisfied that the applicants have demonstrated that the orders sought in the consolidated applications are merited,” read part of the ruling.
“We therefore grant conservatory orders and/or stay of execution and implementation of orders numbers (a), (b), (c) and (d) of the High Court judgment, for a period of twelve (12) months to enable the appellants prosecute their appeal before this Court.”
The consolidated applications stem from the High Court judgment that challenged the National Assembly’s decisions regarding RMLF allocations, highlighting the ongoing disagreements over financial resource distribution and the implementation of devolution.
Petition
A petition was filed contending that the National Assembly’s decisions of September 28, 2023, and August 13, 2024, unilaterally excluded county governments from RMLF allocations for road maintenance in their respective counties.
The petitioners argued that this action violated fundamental constitutional principles of devolution and equitable allocation of resources, citing Articles 6(1), 10, 118, 186, and Section 18 of Part 1 of the Fourth Schedule of the Constitution.
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Furthermore, they challenged the constitutionality of Section 47 of the Kenya Roads Act, No. 2 of 2007 (concerning road classification) and Section 6 of the Kenya Roads Board Act, 1999, asserting their non-conformity with the Constitution.
The petitioners sought various reliefs, including declarations of unconstitutionality and mandatory orders for the inclusion of county governments as RMLF beneficiaries and the disbursement of Ksh10.5 billion.
However, the National Assembly and the Kenya Roads Board (KRB), the applicants in the appeal, opposed the High Court petition.
Their primary argument was that revenue raised nationally is to be shared equitably between the two levels of government as per Article 202 of the Constitution.
National Assembly and KRB’s submissions
They explained that county governments initially received RMLF as a conditional grant from the national government from the 2015/2016 to 2020/2021 financial years, constituting 15% of the RMLF.
However, during the approval of the third-generation revenue sharing formula (as per Article 217), the conditional grant from RMLF was discontinued.
The funds for county roads were instead incorporated into the county governments’ equitable revenue share, which saw a significant increase (e.g., from Ksh316.5 billion to Ksh370 billion).
Further, the National Assembly asserted that reinstating RMLF as a conditional grant would lead to “double allocation” of funds to county governments and disadvantage national government road agencies.
The High Court affirmed its jurisdiction and ruled in favor of the petitioners. It declared that the National Assembly’s impugned decisions undermined devolution and were unconstitutional.
The Court also found sections 6 of the Kenya Roads Board Act, 47 of the Kenya Roads Act, and 7 of the Roads Maintenance Fund Act unconstitutional for undermining devolution principles.
Aggrieved by this decision, the National Assembly and KRB appealed, seeking conservatory orders to stay the execution and implementation of the High Court’s declarations.
They argued that their appeal was arguable and that if the stay was not granted, the appeal would be rendered nugatory, causing irreversible harm to public interest.
After considering all submissions, the Court of Appeal confirmed that the appeals were indeed arguable and sided with the applicants on the nugatory and public interest arguments.
The judges acknowledged that an immediate invalidation of the statutory framework for road classification and RMLF management would lead to “total chaos and disorder,” causing “considerable and irreversible loss, misery and harm to the public”.
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