By The Weekly Vision Reporter
The Court of Appeal has set 6 February as the date it will deliver its ruling on a petition by the National Assembly challenging a High Court decision that last year declared the entrenchment of the National Government–Constituency Development Fund (NG-CDF) in the Constitution unconstitutional.
Led by Senior Counsel Otiende Amollo, who is also the MP for Rarieda, the National Assembly on Monday, 1 December, presented its arguments virtually before a three-judge Court of Appeal Bench comprising Justices Daniel Musinga, Francis Tuiyott and Aggrey Muchelule. The legal team faulted the High Court judgment delivered on 24 September, in which a three-judge bench declared the NG-CDF Act of 2015 unconstitutional. The High Court further ordered that the Fund must cease to exist by 30 June 2026.
In his submissions, Mr Amollo argued that the High Court had failed to appreciate expert evidence demonstrating that the NG-CDF, as conceptualised and administered, adhered to the principles of prudent use of public resources and avoided duplication of county functions by the National Government.
“The Constituency is a National Government service delivery unit recognised under the National Government Coordination Act, making NG-CDF a decentralisation, not devolution, mechanism,” he submitted.
He added that the National Assembly does not breach the doctrine of separation of powers in its oversight of the NG-CDF Board, noting that such oversight aligns with Parliament’s mandate under Article 95, and that the Constitution does not impose “a rigid separation of powers”.
According to the National Assembly’s legal team, the High Court also erred by failing to recognise that the Fund only finances identified and prioritised projects that fall within the exclusive functions of the National Government as set out in the Constitution.
Another key argument raised in the appeal is a recent Supreme Court judgment indicating that the enactment of the NG-CDF Act, 2015, did not require the involvement of the Senate, contrary to the position taken by the High Court.
Several Members of the National Legislative Caucus were present during the virtual appeal hearing, including the Chairperson of the Justice and Legal Affairs Committee, Gitonga Murugara (Tharaka), the Chairperson of the Delegated Legislation Committee, Samuel Chepkonga (Ainabkoi), Homa Bay Town MP Peter Kaluma, Suba North MP Millie Odhiambo and Kibwezi West MP Mwengi Mutuse.
