The High Court has dealt a major blow to Parliament’s push to anchor the Constituency Development Fund (CDF) and other funds into the Constitution, barring the National Assembly from forwarding the Constitution of Kenya (Amendment) Bill, 2025, to President William Ruto for assent.
In a ruling delivered on Thursday, September 18, Justice Lawrence Mugambi of the Milimani High Court issued conservatory orders that not only block the Bill from reaching the President’s desk but also declare that even if assent were granted, it would not take effect until the petition is fully determined.
“Suspending what is questionable serves the public better than proceeding with a doubtful process which could lead to problematic constitutional amendment,” Justice Mugambi ruled. He emphasized that only the High Court – not Parliament has the authority to determine the constitutionality of actions.
The orders followed a petition filed by Katiba Institute, the Kenya Human Rights Commission (KHRC), Transparency International Kenya (TI-Kenya), and the Institute for Social Accountability (TISA). The lobby groups challenged Parliament’s attempt to enshrine the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the supreme law.
Katiba Institute argued that the Bill is “constitutionally superfluous” and fiscally irresponsible, insisting that such funds already exist within Kenya’s legal and financial framework. They pointed out that NGAAF, for example, operates under the Public Finance Management Act (National Government Affirmative Action Fund) Regulations of 2016, while Article 206 of the Constitution already permits the creation of special-purpose funds.
The petitioners also argued that certain provisions in the Bill require approval through a national referendum. They faulted Parliament for failing to enact a referendum law for the past 14 years, insisting that no amendment requiring a public vote can proceed without such legislation.
Parliament and the Attorney General opposed the case, claiming the court lacked jurisdiction and that halting the President’s assent violated the principle of separation of powers. The court dismissed these arguments, affirming its jurisdiction and directing Chief Justice Martha Koome to empanel a multi-judge bench to hear the matter.
The Bill, sponsored by Rarieda MP Otiende Amollo and Ainabkoi MP Samuel Chepkonga, had already passed its Third Reading in the National Assembly but was yet to be debated by the Senate. Its fate now rests with the bench to be appointed, in a case expected to shape the future of constitutional amendments in Kenya.
