The High Court on Friday declared the National Government, Constituency Development Fund (NG-CDF) unconstitutional.

According to the court, NG-CDF undermined the principle of devolution and faulted the extra layer created by the fund which the judges observed led to wastage of public resources.

“For all the above reasons and conclusions, we now make the following declarations, that the National Government Constituency Development Fund Act of 2015 as amended in 2022, and 2023 is hereby declared unconstitutional,” stated the court. 

The three-judge bench comprising Judge Kanyi Kimondo, Justice Mugure Thande and Lady Justice Roselyne Aburili observed that NG-CDF duplicated government activities.

While issuing the judgement, the court found out that the fund distorted the structure of devolution; hence, the non-involvement of the Senate made it unconstitutional.

On whether the Act violated the doctrine of separation of powers, the court concluded that the act violated the doctrine of separation of powers by involving Members of Parliament in implementing the Fund.

The court also found out that the NG-CDF Act violated principles of devolution under the Constitution by creating a parallel unit of development separate from the Counties.

In their ruling, the three-judge bench directed that the pending government projects funded under the NG-CDF be given more time for completion.

"That NG-CDF and all its projects, programs and activities shall cease to operate at the stroke of midnight on 30th June 2026," the court declared.

"That this petition having been filed in the public interest, each party shall bear its own costs."

In 2016, Katiba Institute challenged the constitutionality of the Act on behalf of the petitioners who argued that the Act offended the principles of separation of powers, public finance and devolution.

The petitioners in their case had claimed that the allocation of funds to NGCDF between the county and national government before vertical revenue division was unconstitutional.