Major Win for MPs – Appeal Court Revives NG-CDF After High Court Declared It Unconstitutional
In a significant victory for Kenyan legislators, the Court of Appeal has reversed a previous High Court decision that had declared the entire National Government Constituencies Development Fund (NG-CDF) Act of 2015 unconstitutional.
A three-judge bench, led by Court of Appeal President Justice Daniel K. Musinga, alongside Justices Francis Tuiyott and A. O. Muchelule, delivered the ruling on Friday morning. The appellate court annulled the High Court's judgment and decree from September 20, 2024, which had struck down the legislation in full.
The judges determined that the lower court had made errors in its constitutional interpretation and in the remedies it imposed. Specifically, the High Court failed to conduct a thorough and principled examination of the Act in relation to key issues such as public finance management, the devolved system of government, and the separation of powers.
The Court of Appeal clarified that amendments made to the NG-CDF Act in 2022 and 2023 did not render the original challenge moot. It rejected arguments that the fund undermined devolution or improperly overlapped with functions assigned to county governments under the Constitution.
Regarding separation of powers, the bench agreed that only one specific provision—section 43(9)—was problematic. This clause linked the tenure of constituency fund managers to parliamentary terms and election cycles, which the court found to breach the separation of powers doctrine. As a result, that single section was severed from the Act, while the rest was upheld.
The judges also dismissed claims that the NG-CDF violated principles of public finance. They stressed that the fund is integrated into the national government's approved expenditures through the Appropriations Act passed by the National Assembly. Moreover, robust accountability mechanisms remain in place, including mandatory audits by the Auditor-General and ongoing parliamentary scrutiny.
The appellate court criticized the High Court for not adequately comparing the Act's provisions against the constitutional framework and for relying on speculative or hypothetical concerns rather than concrete violations. Drawing on precedents like the U.S. Supreme Court case U.S. v. Butler (1936), the judges emphasized that judicial review focuses on constitutional compliance, not on approving or rejecting legislative policy choices.
This decision reinstates the NG-CDF framework (minus the invalidated section), providing continued access to constituency-level development funding and bringing relief to Members of Parliament who rely on the program for local projects. The National Assembly had appealed the High Court's earlier ruling to safeguard the fund.
