National Assembly gets reprieve after Court of Appeal stays decision cutting counties out of road fund

The Court of Appeal has granted the National Assembly and roads agencies temporary relief by staying a High Court decision which had declared certain sections of the Roads Board Act unconstitutional, thereby stalling the disbursement of billions of shillings for road maintenance.

In a ruling delivered by Justices Daniel Musinga, Paulyne Nyamweya and George Odunga, the court noted that the respondents had urged the High Court, upon declaring section 47 of the Kenya Roads Act, Cap 408 and section 6 of the Kenya Roads Board Act, Cap 408A unconstitutional, to grant Parliament at least 12 months to implement legislative interventions.

“Taking into consideration all the relevant factors that we have pointed out, we are satisfied that the applicants have demonstrated that the orders sought in the consolidated applications are merited. The appeal and the intended appeal are arguable. The appeals shall be rendered nugatory unless the orders sought are granted. Public interest also favours the grant of the orders sought. We therefore grant conservatory orders and/or stay of execution and implementation of orders (a), (b), (c) and (d) of the High Court judgment,” the judges ruled.

They added that it was undisputed that, following delivery of the impugned judgment, but within the 15-day stay of execution granted by the High Court, a sum of Sh3,682,774,150 was paid by the Kenya Roads Board to county governments.

“We shall not make an order for payment of the balance of Sh6,839,437,703 as urged by counsel for the 1st to 5th respondents because, firstly, there was no directive by the High Court compelling payment of any amount; and secondly, there is a cross-appeal by the 1st to 5th respondents regarding payment. In light of the timelines we have prescribed, we direct the applicants to ensure that their records of appeal, together with their written submissions, are filed and served within 30 days.”

The court also directed the respondents to file and serve their written submissions within 14 days of service, after which the matter shall be listed for case management before the Deputy Registrar.

On June 5, High Court Judge Lawrence Mugambi sitting in Nairobi ruled that the National Assembly's exclusion of county governments from the Road Maintenance Levy Fund was unconstitutional.

The petitioners had challenged decisions made by the National Assembly on September 28, 2023 and August 13, 2024, which excluded counties from receiving allocations from the fund. They argued this violated constitutional principles of devolution and equitable resource sharing.

This comes barely a month after the Council of Governors indicated willingness to withdraw a court case challenging its exclusion from the Sh10.5 billion Road Maintenance Levy Fund if the National Treasury consults the 47 county governments.

Homa Bay Governor Gladys Wanga told the National Assembly Budget and Appropriations Committee that governors would prefer to settle the matter out of court, seeking clarity on the fund’s implementation.

“The Council of Governors is willing to have this matter sorted out of court if possible and is willing to engage Members of the National Assembly towards achieving this,” said Wanga.

Committee chair, Alego Usonga MP, Samuel Atandi, noted that delays in passing the County Governments Additional Allocation Bill 2025 have stalled road projects by the Kenya Rural Roads Authority. Atandi urged the CoG to explore an out-of-court settlement, warning that stalled roads risk delaying development, while the bill aims to unlock Sh50.5 billion in allocations to counties from development partners.

The bill, a republication of the 2024 version, stalled after the National Assembly and Senate failed to agree on the amount to allocate to counties, with the Assembly proposing Sh25.3 billion and the Senate Sh50.5 billion.

Justice Mugambi declared the National Assembly’s decisions null and found sections 47 of the Kenya Roads Act and 6 of the Kenya Roads Board Act unconstitutional for undermining counties' constitutional mandate to maintain roads under the Fourth Schedule.

“The court did not issue coercive orders against Parliament but directed that future Road Maintenance Levy Fund allocations should include county governments. The exclusion of county governments threatens the spirit of devolution entrenched in our Constitution,” said Mugambi.

Other Topics To Read

• National
• National Assembly
• Road Maintenance Levy Fund
• Roads Board Act
• National Assembly gets reprieve after Court of Appeal stays decision cutting counties out of road fund
• Headlines

Petitioners argued that the exclusion violated constitutional principles of devolution, equitable resource sharing and public participation. Respondents contended the issue was premature and that the fund was already factored into the counties' equitable share.