A constitutional petition challenging the establishment of the National Government Constituency Development Fund Act has been sent back to Chief Justice Martha Koome after one of the judges pulled out of the case.
The case, which was filed in 2016 is yet to be a heard and CJ Koome had picked Justices Kanyi Kimono, Roseline Aburili and Jairus Ngaah to hear the matter.
However, lawyers representing Parliament led by senior counsel Otiende Omollo and Peter Kaluma expressed fears that Justice Ngaah might be biased having handled another case that quashed the CDF Act.
The bench at the same time declined to join five members of Parliament who sought to be allowed to participate in the proceedings as interested parties.
The bench observed that the matter before them was filed back in 2016 and was coming up for highlighting submissions.
The judges found that allowing the 5 Members of Parliament who are also lawyers drawn from Kibwezi, Homa Bay, Gatanga, Tharaka Nithi and Ainamoi constituencies will delay the hearing and determination of the application.
Activist Wanjiru Gikonyo challenged the fund, which was formed after the old CDF Act was quashed by the High Court.
He wanted the court to declare NGCDF unconstitutional on grounds that it creates a third layer of governance that is not in the Constitution.
However, Members of Parliament led by Eldama Ravine’s Moses Lessonet had argued that the National Government Constituency Development Fund (NGCDF) is nationwide and benefits a lot of people, especially those at the grassroots level.
They further argued that should the kitty be scrapped, the socio-economic rights of wananchi will be violated.
The government allocated Sh34.5 billion to NGCDF for the 2016/17 fiscal year.
The National Assembly passed the NGCDF after the High Court sitting in Nairobi declared CDF unconstitutional and gave MPs one year to align it with the Constitution of Kenya 2010.
The court ruled that by involving MPs in the planning and approval of CDF projects, the CDF Act violated the doctrine of separation of powers between the executive and the legislature.
To remedy the situation, parliament enacted the National – Government- Constituency Development Fund Act 2015 which took effect in February 2016.
