Governors set to lock horns with MPs in court over Sh.10.5bn road levy

Enraged governors have moved to protest a decision by Members of Parliament to deny counties Sh10.5 billion from the Roads Maintenance Levy Fund.

The protesting county chiefs, who are among five petitioners irked by the action of lawmakers, argue that the decision by the National Assembly to remove county governments as beneficiaries of the levy is unconstitutional.

The case that is filed under a certificate of urgency also has Issa Elanyi Chamao, Patrick Ekirapa, Paul Kirui and International Legal Consultancy Group as complainants.

They argue that the MPs' action has severe implications on the funding of the county governments. Additionally, the decision was arrived at before public participation or the agreement of the Senate.

"The decision promotes arbitrariness in decision making, sustains bad governance and is manifestly an abuse of parliamentary powers of the National Assembly," the petition notes.

The petition indicates that the National Assembly had on September 23, last year decided to unilaterally remove county governments as beneficiaries of the Road Maintenance Levy Fund for the 2024-2025 and 2025-2026 financial years, citing section 6 of the Kenya Roads Board Act, 1999.

However, the decision was challenged in the High Court and a conservatory order was issued, suspending the decision.

The matter was, however, withdrawn in February this year in an out-of-court settlement as MPs promised to issue out Sh10.5 billion to the devolved units via the County Governments Additional Allocation Bill, 2024.

The lawmakers later went back on their promise and the petitioners are now worried that county governments will have no funds at all yet they have constitutional responsibility bestowed on them over county roads.

"Effectively, the National Assembly has by design and subterfuge outrightly denied all the 47 county governments funds to maintain roads, which funds the Kenya Roads Board collects from Kenyans every day from the purchase of fuel and is available in the bank account of the Board for use," stated the petition.

With the move, the board will now channel funds through the Kenya National Highways Authority (KeNHA) Kenya Rural Roads Authority, Kenya Urban Roads Authority and Kenya Wildlife Service (KWS).

"The petitioners aver that disbursements of the funds to KeNHA, KURA, KeRRA and KWS to the exclusion of the county governments is openly discriminatory and deeply unconstitutional," Elanyi said in an affidavit.

The county chiefs through the Council of Governors (CoG) headed by Kirinyaga Governor Anne Waiguru and other petitioners have singled out the road agencies as well as CS Transport Davies Chirchir, Parliament and Attorney General as respondents in the case while the Commission on Revenue Allocation, the Senate and Intergovernmental Relations Technical Committee are listed as interested parties in the court case.

In their first plea, they want the court to issue an order blocking the Kenya Roads Board from disbursing the money to the road agencies or disbursing Sh10.5 billion to the county governments.

"Pending the hearing and determination of this application inter-partes, a conservatory order be issued stopping Kenya Roads Board from disbursing funds from the Road Maintenance Levy Fund to KeNHA, KURA, KeRRA and KWS," the petition indicates.

They explain that they will be requesting the Attorney to amend the provisions of the Kenya Roads Act 2007 to provide for an institutional framework that supports the constitutional classification of roads being national trunk roads and county roads.