NAIROBI, Kenya — The Court of Appeal has suspended a High Court ruling that declared key sections of the Roads Act and Kenya Roads Board Act unconstitutional, effectively unlocking billions of shillings earmarked for road maintenance across the country.
In a ruling delivered by Justices Daniel Musinga, Paulyne Nyamweya, and George Odunga, the appellate court granted temporary relief to the National Assembly and various road agencies, saying the appeal raised weighty constitutional questions and that public interest favored a stay of the judgment.
The court froze the implementation of four critical orders issued by the High Court on June 5, which had threatened to paralyze the disbursement of funds under the Road Maintenance Levy Fund (RMLF).
The High Court had declared Section 47 of the Kenya Roads Act and Section 6 of the Kenya Roads Board Act unconstitutional for excluding counties from accessing road levy funds.
“We are satisfied that the applicants have demonstrated that the orders sought… are merited,” the judges ruled. “The appeal and the intended appeal are arguable… Public interest also favours the grant of the orders.”
Sh3.6 Billion Already Disbursed
The court noted that within the initial 15-day stay issued by the High Court, the Kenya Roads Board had disbursed Sh3.68 billion to counties.
However, it declined to compel payment of a further Sh6.8 billion, saying there was no High Court directive to that effect, and the matter is now subject to a cross-appeal.
The Court of Appeal directed the applicants to file their records of appeal and written submissions within 30 days. Respondents must file replies within 14 days of being served.
Constitutional Challenge and the Devolution Debate
The High Court case arose from a petition challenging decisions by the National Assembly in 2023 and 2024 to exclude counties from RMLF allocations.
Petitioners argued the decisions violated principles of devolution and equitable resource sharing enshrined in the Constitution.
Justice Lawrence Mugambi agreed, finding the exclusions unconstitutional. While he stopped short of issuing coercive orders, he instructed that future allocations must include county governments.
“The exclusion of counties from the Road Maintenance Levy Fund threatens the spirit of devolution,” Mugambi ruled.
Governors Push for Settlement
The court battle comes amid parallel efforts for an out-of-court resolution. Earlier this month, Homa Bay Governor Gladys Wanga told the National Assembly Budget Committee that the Council of Governors (CoG) is open to negotiations with the National Treasury to resolve the standoff.
“The CoG is willing to have this matter sorted out of court and is ready to engage Members of the National Assembly,” said Wanga.
Committee Chair Samuel Atandi (Alego Usonga) echoed the sentiment, warning that continued delays would paralyze critical road projects by agencies like KeRRA.
He urged both Houses of Parliament to expedite the passage of the stalled County Governments Additional Allocation Bill, which would unlock Sh50.5 billion in development partner funds.
The bill, a revised version of the 2024 draft, has stalled due to a deadlock between the National Assembly and Senate over the amount to allocate to counties.
