NG-CDF Legality Fight Escalates to Supreme Court as Petitioners File Appeal Notice

The dispute over the National Government Constituencies Development Fund Act, 2015, has moved to Kenya's highest court. On February 6, 2026—the same day the Court of Appeal delivered its judgment—petitioners Wanjiru Gikonyo and Cornelius Oduor filed a Notice of Appeal against the entire decision in Civil Appeal No. E884 of 2024 (consolidated with E868 of 2024).

The notice states they are aggrieved by the ruling from Court of Appeal President Justice Daniel K. Musinga, Justice Francis Tuiyott and Justice A. O. Muchelule, and intend to seek redress at the Supreme Court. Joshua Malidzo of the Katiba Institute confirmed the filing, signaling petitioners' determination to pursue the matter further.

The Court of Appeal had overturned a High Court judgment from September 20, 2024, which declared the full NG-CDF Act unconstitutional for breaching devolution, public finance management and separation of powers. The appellate bench found the lower court erred in its constitutional analysis, relied on speculative harms rather than clear violations, and failed to tie findings to specific constitutional provisions. It upheld the Act's validity, noting NG-CDF forms part of national expenditure approved through the Appropriations Act and includes safeguards like Auditor-General audits, mandatory accounting and parliamentary oversight.

Only Section 43(9)—which linked constituency fund managers' tenure to parliamentary and electoral cycles—was struck down for infringing separation of powers. The rest remains operative, allowing NG-CDF to fund local priorities without the previously ordered wind-down by June 30, 2026.

This latest development revives a constitutional battle that dates back to earlier Supreme Court scrutiny of previous CDF laws. Those cases prompted the 2015 Act and subsequent amendments in 2022 and 2023 to better align with devolution under the 2010 Constitution. Petitioners have consistently argued the fund creates an unlawful parallel structure, duplicates county functions in areas like health, education infrastructure and roads, and undermines devolved governance.

For constituency-level construction and infrastructure, the Court of Appeal ruling had provided immediate stability. NG-CDF supports building classrooms, laboratories, dormitories, dispensaries, maternity units, rural access roads, water pans, boreholes and police posts. Equal allocations to 290 constituencies ensure steady small-to-medium contracts for local firms, sustaining jobs in masonry, carpentry, plumbing and material supply even in remote areas.

The pending Supreme Court appeal introduces uncertainty again. If the top court upholds the petitioners, it could invalidate the Act or require major changes, potentially halting disbursements, delaying ongoing works and freezing new tenders. Contractors might face payment risks on active sites, while planned school expansions or road gravelling could stall.

MPs and the National Assembly, which successfully appealed the High Court decision, are expected to defend the Act vigorously. National Assembly leadership has previously urged focus on implementation amid litigation. Critics, including county leaders and civil society, maintain stronger devolution safeguards are needed to prevent encroachment on county mandates.

The case now awaits certification for Supreme Court hearing, likely on grounds of constitutional interpretation and public importance. Until resolved, NG-CDF operations continue under the appellate framework, but the threat of reversal keeps the constituency development landscape in limbo.