Senators on Friday lost for the second time a case in which they sought powers to convene and chair county development boards to coordinate projects.
The Court of Appeal dismissed their petition after losing at the High Court which had declared as null and void the Bill establishing CDBs.
The legislation which was passed by the National Assembly had placed governors under senators as the latter would chair the CDB and make decisions on development.
Court of Appeal judges Milton Makhandia, Daniel Musinga, Agnes Murgor, Otieno Odek and Sankale ole Kantai found that the High Court did not err in law by ruling that the law was unconstitutional.
The five-judge bench held that the CDBs are unconstitutional for altering the structure of devolution in the Constitution without a referendum.
“The courts have the role to oversight other arms of the government and Parliament must operate under the Constitution which is the supreme law of the land,” the court held.
In the case, Parliament had appealed the judgment delivered by justices Isaac Lenaola, Mumbi Ngugi and George Odunga that the 2014 CDB Amendment Act was null and void because it gave senators, MPs and the executive illegal powers to interfere with county governments.
Senators were supposed to chair CDB sittings while the governors served as secretaries, which the court found unlawful.
The Council of Governors argued the law was meant to weaken their powers and hamper development projects in the counties.
CoG told the court that allowing senators to chair the CDBs would interfere with the separation of powers outlined in the Constitution.
Ironically, Nandi Governor Stephen Sang crafted the impugned law when he was senator.
He had stated that the CDBs would provide counties with a single coordinating unit for directing development projects.
