- The central issue revolves around the Road Maintenance Levy Fund (RMLF), sparking disagreement between the House and the Council of Governors.
- The case will be mentioned on January 17, 2024, for further direction.
The High Court has suspended a decision by the National Assembly to deny county governments resources to manage key roads at the devolved units.
In the orders issued on Friday by Justice Lawrence Mugambi, the decision made by the parliamentarians during a heated session on September 28, will remain pending as the court hears and determines a petition before it.
At the heart of the matter is the Road Maintenance Levy Fund (RMLF), which has become a topic of disagreement between the House and the Council of Governors.
This is after the former removed county governments as RMLF beneficiaries, which they enjoyed between Financial Years 2015/16 to 2020/21.
The RMLF is administered through the Kenya Roads Board (KRB) and comprises tax collected from Kenyans when they buy fuel. It is used to maintain roads.
During the aforementioned financial years, county governments were allocated 15 per cent of the RMLF, being conditional grants.
Later on, however, the money was incorporated in the equitable revenue share beginning the 2021/22 financial, bringing to an end the conditional grants under the RMLF.
But during the 9th national and county government coordinating summit held on February 11 in Naivasha, it was agreed to have the funds reinstated to counties from the financial year 2024/25 with an allocation of 20 per cent.
Lawmakers however went against this and excluded county governments from the fund for FY 224/25 and 2025/26.
Aggrieved by the decision, the CoG alongside three private citizens and the International Legal Consultancy Group moved to court challenging the constitutionality of the September 28 decision.
In the notice dated November 16, 2023, the National Assembly has been sued along with the Kenya Roads Board, the Ministry of Treasury and its CS, the Ministry of Transport and its CS, the Kenya Urban Roads Authority, KeRRA and the Attorney General.
The petition by Advocate Peter Wanyama argued that the National Assembly has posed a challenge to the implementation of devolution by "clawing back money meant to finance devolved functions in crucial sectors".
He further argued that since the RMLF is to be allocated to bodies responsible for road maintenance, the county governments are legal recipients of the money.
This is grounded on the 2010 Constitution which classified Kenyan roads into national trunk and county roads, making county governments responsible for the latter.
Wanyama added that the National Assembly made the decision without involving the public or the Senate, resulting in an illegality.
He further said the decision has far-reaching implications for the financing of the devolved units.
"The petitioners aver that the said decision of September 28, 2023, is illegal and unconstitutional. Specifically, it undermines mandatory constitutional objectives of the devolved system and the functions of county governments in the transport sector," he added.
The documents filed in court added that the National Assembly has abused its parliamentary powers and sustained bad governance.
Upon receiving the documents and determining the same, Justice Mugambi suspended the National Assembly's decision not to recognise the counties as the beneficiaries for RMLF in the financial years 2024/25 and 2025/26
"Pending the hearing and determination of this application, a conservatory order be and is hereby issued suspending the decision of the National Assembly of September 28, 2023, removing and/or not giving recognition to county governments to be considered as beneficiaries of RMLF in financial 2024-2025 and 2025/2026," the orders read.
The case will be mentioned on January 17, 2024, for further direction.