The Court of Appeal has granted conservatory orders halting the execution of a High Court judgment that had declared unconstitutional the National Assembly’s decision to exclude county governments from benefiting from the Road Maintenance Levy Fund (RMLF).
The ruling, delivered on Friday by a three-judge bench comprising Justices Daniel Musinga, Pauline Nyamweya, and George Odunga, effectively pauses the enforcement of the June 5, 2025, decision by Justice Lawrence Mugambi that threatened to unravel the County Governments Additional Allocations Act, 2025 and block Ksh 50 billion in funding to devolved units.
“Unless that declaration is stayed pending appeal, County Governments will not be able to get the additional allocations contained in the First and Second Schedules to the Act, said to be amounting to KSh 50 billion or thereabouts,” the judges noted in their ruling.
“That will exacerbate service delivery in all the counties. The public should not be made to suffer when there are available financial resources that cannot be apportioned due to absence of an enabling legal framework.”
The appellate court emphasized the importance of safeguarding public interest, warning that an immediate enforcement of the High Court decision could trigger a funding vacuum that disrupts critical services in counties.
“There are instances when a court may suspend a declaration of unconstitutionality of a statute, like when such declaration… causes significant public suffering or disruption in provision of services or administration of justice,” the bench stated.
The High Court had ruled that the National Assembly’s decisions of September 28, 2023, and August 13, 2024, excluding counties from the RMLF, violated the Constitution’s principles of devolution and equitable resource distribution.
The ruling also nullified sections of the Kenya Roads Act and the Kenya Roads Board Act, terming them inconsistent with the constitutional framework on division of functions between the national and county governments.
In their appeal, the National Assembly, joined by the Kenya Roads Board and the Attorney General, argued that the High Court decision would render ongoing and future road maintenance projects legally ambiguous, and potentially halt critical infrastructure funding.
The Court of Appeal appeared to agree, stating, “The appeal and the intended appeal are arguable. The appeals shall be rendered nugatory unless the orders sought are granted. Public interest also favours grant of the orders sought.”
Consequently, the Court stayed orders (a), (b), (c), and (d) of the High Court judgment for 12 months, allowing time for the appellants to prosecute their appeal.
However, the appellate court declined to order the payment of a disputed Kshs.6.8 billion balance to counties, after noting that “there was no directive by the High Court compelling payment of any amount,” and that a cross-appeal on the matter remains unresolved.
The Court directed the appellants to file their records of appeal and submissions within 30 days, with respondents expected to respond within 14 days thereafter.
“This being public interest litigation, parties shall bear their own costs of the application,” the bench concluded.
Justice Mugambi’s earlier ruling had directed the National Assembly, Treasury, and Kenya Roads Board to amend legal frameworks within 12 months to include county governments as direct beneficiaries of the RMLF and to reclassify roads in alignment with constitutional mandates.
