The High Court has barred Parliament from forwarding the Constitution of Kenya (Amendment) Bill 2025 to President for assent.
In a ruling on Thursday, September 18, Justice Lawrence Mugambi issued a conservatory order barring Parliament from forwarding the Constitution of Kenya (Amendment) Bill to the President for assent.
He further stated that even if the Bill were assented to, the assent would not take effect until the petition is determined.
High Court Stops Parliament from Sending Constitution Amendment Bill 2025 to President
The file will now be forwarded to the Chief Justice to empanel an uneven bench of judges.
“Suspending what is reasonable serves the public better than proceeding with a doubtful process which could lead to problematic constitutional amendment,” Justice Lawrence Mugambi ruled.
“The High Court of Kenya has jurisdiction to hear and determine the petition. Only the High Court, not Parliament, can determine the constitutionality of actions.”
This follows a petition filed by Katiba Institute challenging Parliament’s bid to entrench the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the Constitution.
In its filing, Katiba Institute argued that the entire Bill is constitutionally superfluous and that the funds it seeks to establish are inconsistent with both the letter and the spirit of the Constitution.
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The petitioners further argued that the Bill, together with its scheduled public participation, is unnecessary and violates the constitutional principles of prudence and responsibility in public spending.
They also contended argued that the Bill contains provisions that require approval through a referendum.
They faulted Parliament for failing, for over 14 years, to enact a referendum law as mandated by the Constitution, insisting that such legislation must be in place before any constitutional amendment process can proceed.
“The Bill contains provisions that require approval through a referendum. Therefore, Parliament should first be compelled to enact a referendum law, which it has failed to do for the past 14 years, before embarking on any constitutional amendment process,” read the petition.
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Additionally, they opined that the proposed NGAAF is already being implemented under the Public Finance Management Act (National Government Affirmative Action Fund) Regulations, 2016, noting that Article 206(1)(a) of the Constitution permits the creation of special-purpose funds.
The organisation cited various court decisions, including one by the Supreme Court, which affirmed that the proposed NG-CDF can operate within the existing constitutional framework.
“The Bill and any expenditure related to it are, therefore, unnecessary and represent a waste of scarce public resources that could otherwise be directed towards essential services,” Katiba Institute stated.
First introduced in the National Assembly on March 12, 2025, during its first reading, the Bill sponsored by Rarieda MP Otiende Amollo and his Ainabkoi counterpart Samuel Chepkonga had already passed the Third Reading stage in the National Assembly, while the Senate was yet to pass it.
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