Court blocks Parliament’s move to exclude counties from road fund

The High Court has declared unconstitutional Parliament’s decision to exclude county governments from the Sh10.5 billion Road Maintenance Levy Fund (RMLF) for the 2024-2025 financial year.

Justice Lawrence Mugambi ruled that the National Assembly’s resolutions in August and September 2023, which removed counties as beneficiaries of the fund, undermined the spirit and objectives of devolution.

The judge emphasized that the Constitution binds all government organs, including the National Assembly, and that their actions are subject to judicial review.

“It is unacceptable for the legislative arm of the national government to exercise absolute power that deprives funding to a constitutionally assigned county function - road maintenance - by appropriating all revenue collected nationally and set aside for this purpose to the national government,” he said.

The petition was filed by the Council of Governors, alongside Issa Elanyi Chamao, Patrick Ekirapa, Paul Kirui, and the International Legal Consultancy Group.

They argued that the decision to exclude counties was made without public participation or Senate concurrence, violating constitutional principles.

Justice Mugambi also found that existing laws, including the Kenya Roads Act and Kenya Roads Board Act, do not recognize counties’ constitutional role in maintaining roads, thus clashing with Articles 6 and 186 of the Constitution.

The judge criticized the classification of roads into national, rural, and urban categories under current laws for undermining devolution.

He noted that agencies like the Kenya Rural Roads Authority and Kenya Urban Roads Authority have continued to perform functions meant for counties, while counties are denied access to the RMLF.

In response, the National Assembly described the case as premature, noting ongoing parliamentary deliberations on the County Governments Additional Allocations Bill. Samuel Njoroge, the National Assembly Clerk, said counties had received RMLF as a conditional grant before, but the fund was later absorbed into the equitable share to address disparities and increase county allocations.

He argued the petitioners had not shown any harm from continued operations by national road agencies.