Court dismisses National Assembly’s decision to exclude counties from Road Maintenance Levy Fund
The High Court has quashed the National Assembly’s decision that unilaterally excluded county governments from the Road Maintenance Levy Fund (RMLF) allocations for road maintenance in their respective counties.
Delivering the ruling on Thursday, June 5, 2025, Justice Lawrence Mugambi stated that the decision by the August House not only undermines the objectives of the devolution but is also unconstitutional.
“A declaration is hereby issued on the classification of public roads as national roads and rural and urban roads under Section 47 of the Kenya Roads Act, No. 2 of 2007, as read with the first schedule of the Kenya Roads Act No. 2 of 2007 – not only undermines the objectives of the devolution but is also unconstitutional for violating Article 186 and Section 18 of Part I of the fourth schedule of the Constitution,” Justice Mugambi ruled.
Notably, Justice Mugambi issued an order declaring that Section 6 of the Kenya Roads Board Act, 1999, is unconstitutional for violating the provisions of Articles 6, 10, 186, and Section 18 of Part I of the Fourth Schedule of the Constitution.
The court also declared that the decision of the National Assembly to unilaterally remove and/or fail to provide for the county governments as beneficiaries of funds of the Road Maintenance Levy Fund (‘RMLF’) in the financial years 2024/2025 and 2025/2026 as null and void.
Further, Mugambi stated that Parliament’s decision to remove county governments as beneficiaries of Ksh10.552 billion in conditional grants from funds derived from the Road Maintenance Levy Fund (‘RMLF’) in the financial year 2024-2025 amounts to a threat to undermine devolution and is thus unconstitutional for violating Article 10, 118, 186, and Section 18 of Part I of the fourth schedule of the Constitution.
The judge also ruled that any appropriation of funds from RMLF by the National Assembly that does not provide for the county governments as beneficiaries of the RMLF undermines the principles of devolution and is unconstitutional, unenforceable, illegal, null, and void.
National Assembly’s decision
On September 28, 2023, and August 13, 2024, the National Assembly made a decision to unilaterally exclude county governments from the RMLF allocations for road maintenance in their respective counties.
However, Issa Elanyi Chemao and four others moved to court, contending that the Parliament’s action runs afoul of the constitutional principles of devolution and equitable allocation of resources in respect of the county governments.
Additionally, the petitioners contested the constitutionality of the Kenya Roads Act and Kenya Roads Board Act on the basis that they do not conform to the Constitution, in particular, the fourth schedule of the Constitution.
They contended that the Assembly’s impugned decision adversely affects the financing of the devolved government system and was made without public participation and arbitrarily and amounts to abuse of the National Assembly’s powers under Articles 94 and 95 of the Constitution.
