NAIROBI, Kenya – The long-running legal battle over the National Government Constituencies Development Fund (NGCDF) is headed to the Supreme Court after opponents of the fund formally lodged a notice of appeal challenging a landmark Court of Appeal ruling.
Wanjiru Gikonyo and Cornelius Oduor Opuot have notified the Court of Appeal of their intention to contest the decision that upheld the constitutionality of the National Government Constituencies Development Fund Act, 2015, setting the stage for a decisive showdown at Kenya’s highest court.
In a notice dated February 6, 2026, the two respondents said they were aggrieved by the entire judgment and orders of the appellate court and would seek redress at the Supreme Court.
The notice targets a unanimous decision delivered the same day by a three-judge bench led by Court of Appeal President Justice Daniel Musinga, alongside Justices Francis Tuiyott and A.O. Muchelule, which overturned an earlier High Court ruling that had declared the NG-CDF Act unconstitutional in its entirety.
Court of Appeal reversed High Court decision
The appellate judges faulted the High Court for striking down the law without undertaking a sufficiently rigorous constitutional analysis, particularly on the sensitive issues of public finance, devolution, and separation of powers.
In its ruling, the Court of Appeal found that the NG-CDF framework does not violate the structure of devolution or encroach on the constitutional division of functions between national and county governments.
The judges further held that amendments to the Act passed in 2022 and 2023 did not render the original constitutional challenge moot.
However, the court partially agreed with the High Court by declaring Section 43(9) of the Act unconstitutional.
The provision, which linked the tenure of constituency fund managers to the term of Parliament and election transition periods, was found to undermine the doctrine of separation of powers and was severed from the statute.
Public finance and accountability defended
On public finance, the Court of Appeal rejected the argument that the NG-CDF Act offends constitutional principles, cautioning against invalidating legislation on the basis of speculative or hypothetical harm.
The judges noted that NG-CDF expenditure is part of the national budget, approved annually by Parliament through the Appropriations Act, and is subject to multiple accountability safeguards.
These include mandatory financial reporting, audits by the Auditor-General, and parliamentary oversight.
In setting aside the High Court judgment issued in September 2024, the appellate court criticised the trial court for failing to clearly demonstrate how the impugned provisions breached specific constitutional text or principles.
Citing the U.S. Supreme Court decision in U.S. v. Butler (1936), the judges emphasised that courts are not arbiters of legislative policy, but guardians of constitutional compliance.
National Assembly at the centre
The Court of Appeal ruling arose from an appeal by the National Assembly, which had challenged the High Court’s decision invalidating the NG-CDF law.
With the matter now headed to the Supreme Court, the fate of one of Kenya’s most politically significant development funds will once again be subjected to constitutional scrutiny—this time before the country’s final court.
