NAIROBI, Kenya, Feb 7 — When the Court of Appeal overturned the High Court’s declaration that the National Government Constituencies Development Fund (NGCDF) Act was unconstitutional, the central question was whether Parliament had sufficiently cured earlier constitutional defects identified by the courts.
Here is a look at key considerations that informed Friday’s decision by the bench led by Court of Appeal President Daniel Musinga, alongside Justices Francis Tuiyott and George Odunga Muchelule.
1. The law had been amended
A key factor was that the NGCDF Act had been amended in 2022 and 2023.
The judges held that the High Court did not adequately consider whether those amendments addressed earlier constitutional concerns.
“It is not the role of the court to determine the constitutionality of provisions that are no longer in force,” the bench stated, faulting the blanket invalidation of the entire statute.
The appellate court agreed with the National Assembly that courts must evaluate the law as it exists at the time of judgment — not as it previously stood.
2. Precision in constitutional petitions
The bench emphasized that constitutional challenges must clearly identify specific provisions said to violate the Constitution.
“A party alleging unconstitutionality must identify with precision the provisions impugned and demonstrate the manner of inconsistency,” the judges said.
In siding with MPs on this point, the court found that broad structural objections were insufficient without pinpointing exact statutory conflicts.
3. Decentralization is not devolution
One of the core arguments against CDF has been that it undermines devolution by creating a parallel structure at constituency level.
The Musinga-led bench drew a distinction between decentralization of national government services and establishment of a new tier of government.
“Article 6(3) of the Constitution allows the national government to decentralize its functions and services,” the court stated, adding that such decentralization “does not, of itself, create a third tier of government.”
The judges accepted Parliament’s position that the NGCDF funds national government functions and is financed from the national government’s equitable share after revenue division.
4. The role of MPs
Another critical issue was whether Members of Parliament improperly control or manage the fund.
The appellate court rejected the High Court’s finding that MPs exercise executive authority over CDF projects.
“The role of a Member of the National Assembly, as reflected in the amended Act, is one of oversight as contemplated under Article 95 of the Constitution,” the bench said.
The court found no sufficient statutory basis to conclude that MPs implement or directly manage projects under the revised framework.
5. Supreme Court precedent
The High Court had relied heavily on the Supreme Court’s 2022 ruling that struck down the 2013 CDF Act.
However, the Court of Appeal cautioned against applying that decision without examining changes introduced in the 2015 Act and subsequent amendments.
“While decisions of superior courts are binding, each statute must be examined on its own terms, particularly where amendments have been made,” the judges stated.
6. Presumption of constitutionality
Finally, the bench underscored a foundational legal principle: legislation passed by Parliament is presumed constitutional unless clearly proven otherwise.
“The burden lies with the party alleging unconstitutionality to demonstrate clear and irreconcilable conflict,” the court said.
In the judges’ view, that burden had not been sufficiently discharged in light of the amended legal framework.
What the decision means
By agreeing with the National Assembly and MPs on these core issues, the Musinga-led bench signaled judicial deference to Parliament’s corrective legislative action while reaffirming that constitutional compliance remains subject to scrutiny.
The ruling clarifies that decentralization of national government functions through statutory funds is permissible — provided it does not encroach on county functions or breach the separation of powers.
The decision marks a pivotal moment in Kenya’s long-running CDF litigation, reshaping the legal landscape around the fund and its place within the constitutional framework of devolution.
