For the last decade, the Kenyan courts have been grappling with the constitutionality of “constituency development funds” [“CDF”]: that is, funds earmarked from the national government revenue for developmental work on a constituency basis. Judicial decisions have seen multiple repeals and amendments of the original CDF Act of 2013. These alterations to the CDF framework have changed the form, structure, and operation of the funds, while preserving their fundamental nature.
The latest salvo in this battle came from the Court of Appeal which, on 6th February 2026, upheld in significant part the NG-CDF Act of 2015, as amended in 2022 and 2023. In doing so, the Court of Appeal set aside the 2024 judgment of the High Court, which had struck down NG-CDF in its entirety (see here). On one limited issue, the Court of Appeal did agree with the High Court: that is, anchoring the term of the Fund Account Manager to the term of the Parliament was unconstitutional. However, the Court held that this provision could be severed from the rest of the NG-CDF Act, which would remain on the statute book.
Before critiquing the Court of Appeal’s decision, let me briefly recap the chronology of important events that brought us to this point.
- The initial CDF Act, 2013, placed the constituency development funds under the effective control of constituency MPs. The 2013 Act was struck down by the High Court in 2015, primarily on two grounds: that it violated the constitutional provisions on devolution by setting up a “third tier” of government, and that it violated the separation of powers by turning legislators into constituency administrators.
- In response to the judgment, parliament brought in the NG-CDF Act of 2015, which sought to address the High Court’s concerns by (a) creating an adequate separation between the MP and the Constituency Committees responsible for implementing the CDF at the constituency level; and (b) limiting the CDF to developmental projects within the domain of the national government.
- Meanwhile the constitutional challenges to the now-defunct 2013 Act wound their way through the Court of Appeal and finally to the Supreme Court. The Supreme Court, in 2022, affirmed the High Court’s decision, and laid down some crucial constitutional principles: in particular, that the constituency could not be treated as a “service delivery unit,” and that the function of the legislature in a parliamentary structure was to engage in legislation, deliberation, and oversight – not administration (see here).
- In 2022 and 2023, further amendments were made to the NG-CDF Act, to ensure greater insulation of the CDF from devolution and separation of powers challenges.
- In 2024, the High Court – before which a prior challenge to the 2015 NG-CDF Act was pending – struck down the updated law as unconstitutional, holding that even the new(est) version of the Act continued to offend the principles of devolution and separation of powers, as outlined in the Supreme Court’s 2022 judgment.
- On 6th February 2026, the Court of Appeal reversed the High Court’s judgment and upheld the NG-CDF 2015 (as amended in 2022 and 2023), subject to severing one of its provisions.
It should be clear from this account that the key question about the CDF has always been whether a “development” fund that takes the constituency as its unit, and remains connected in some way with the legislative arm of the State, is compliant with the principle of devolution and the separation of powers.
How did the Court of Appeal deal with these two issues? It held, first, that the NG-CDF was about decentralisation, and about ensuring access to the central government in all parts of Kenya. Thus, it was consistent with devolution. Secondly, it held that the under the present structure, the National Assembly was only exercising oversight functions over the CDF, and that this was consistent with the flexible vision of the separation of powers set out under the Kenyan Constitution.
Let us examine each of these justifications in turn.
On the devolution question, in paragraph 72, the Court of Appeal held that the Constitution required the central government to ensure reasonable access to its services in all parts of the republic, and the principle of subsidiary allowed this to be done through centralisation. This is entirely correct. However, with respect, it is also entirely besides the point. The question is not whether the central government can decentralise its functions, but whether it can do so through the constituency unit. The State was aware of this, because it specifically argued – as recorded by the Court in paragraph 60, that ministries may decentralise the functions of the government “to any level of its administrative units, including constituencies.”
But things are not quite as simple: with apologies to Bill Clinton, the correctness of this submission depends on what the meaning of the word “its” is. Can it be said that the constituency is an administrative unit of the central government (“its”?) The Court of Appeal appeared to say so, on two grounds. First, it held that the respondents’ argument that a constituency was not a unit of service delivery was based upon the basic structure of the Constitution, a concept that had been rejected by the Supreme Court in the BBI Judgment (paragraph 68). With respect, this confuses two separate ideas: the basic structure and the basic structure doctrine. What was (arguably) rejected by the Supreme Court in the BBI Judgment was the basic structure doctrine, i.e., which subjects constitutional amendments to judicial review on the touchstone of the Constitution’s basic structure. What was not rejected by the Supreme Court was the incontrovertible fact that the Constitution has a basic structure (one of whose features is representative democracy, which functions through constituency units). The present case did not involve a challenge to a constitutional amendment, and therefore, the Court of Appeal’s observations about the basic structure are inapposite.
Secondly, the Court of Appeal cited Article 89 of the Constitution to hold that “it is a unit firmly embedded within the national governance framework.” (paragraph 71) There are two problems with this observation. One, it is a mere assertion, not backed up by any reference to the constitutional text or structure. There is a vast gap between the fact that the constituency unit exists in the Constitution, and that it exists as an element of national governance. There are many things in the Constitution that are not part of “national governance.” And two, this observation is in the teeth of the Supreme Court’s explicit holding that the constituency is a unit of representation, and not of service delivery. There is a crucial, conceptual distinction between representation and governance: the first has to do with the composition and activities of the legislature, and the second with the role and functions of the executive. The Court of Appeal’s invocation of Article 89 simply elides this difference.
It should therefore be clear that, following the Supreme Court’s holding that the constituency is a unit of representation and not of service delivery, any legislative version of the CDF that retains the constituency as its basis has to be unconstitutional. It cannot be otherwise. The CDF is incontrovertibly about service delivery, and the constituency is not a service delivery unit: individually, these two propositions are unassailable, and together, they make the 2015/2022/2023 version of the NG-CDF as unconstitutional as the 2013 version, regardless of any other changes. The Court of Appeal tried to get around this by referring to the NG-CDF Act’s conceptualisation of the constituency, but with respect, this puts the cart before the horse: the nature of the constituency as a unit of representation flows from the constitutional scheme and design, and is upstream of legislation. Legislation, by stipulating that the constituency is a unit of service delivery, cannot thereby make it so.
Let us turn to the separation of powers. Even though the Court of Appeal substantively agreed with the High Court on the unconstitutionality of the term of the Fund Account Manager, it laid out a more deferential account of the separation of power, which we must scrutinise. The Court of Appeal held that separation of powers did not require “separation of arms and organs into impermeable silos but rather structured interaction anchored in accountability.” (para 95) This is undebatable – in fact, it is so undebatable that it is a truism that tells us nothing meaningful. Nobody has ever claimed that separation of powers requires “silos”: what is needed is an account of what separation of powers does require, and that – in turn – is grounded in questions of why a particular Constitution has the separation of powers. In the specific case of Kenya, as I have argued in Chapter Four of this book, the 2010 Constitution was framed as a response to a colonial and post-colonial history where representative bodies had been systematically degraded, and made subordinate to the executive. The separation of powers in Kenya is thus best understood as both transformative and restorative (per Dixon and Landau) – that is, restoring their core functions to the separate organs of state.
This perspective helps us understand the flaw in the Court of Appeal’s approach: while the Court of Appeal was correct to say that the separation of powers does not require State organs to function in “splendid isolation or tortured loneliness,” (para 97), there is a distinction between overlap that involves organs interacting in the process of checking or overseeing each other, and overlap that involves organs performing each other’s core functions. Indeed, this last bit was precisely what the Supreme Court, in its CDF judgment, held was the quintessence of the separation of powers doctrine, and this is something that the Court of Appeal did not engage with. Therefore, the National Assembly’s involvement with the CDF remains problematic in that the legislative organ is being asked to perform a core executive function. Crucially, it is important to recognise that the problem does not go away if the individual MP’s control over their constituency fund is taken away. Yes, this does address a particularly crude kind of incumbent bias and concentration of power, but the problem is also on the level of the legislative organ as a whole: that is, a legislative organ that takes, as its primary – or at least, equivalently important – task the management of CDF, is a legislature that risks diluting its own core functions of legislation, deliberation, and oversight. In other words, the problem with encroachment is not only that one State organ takes over the core functions of another, but that in doing so it becomes less able or willing to perform its own, very distinct core functions.
On the specific point, this distinction may not have made a difference to the outcome, as the Court of Appeal also found the Fund Account Manager provision to be unconstitutional. However, there is a great deal of daylight between the High Court and the Court of Appeal in how separation of powers is to be understood, which certainly will make a difference to the outcome of future cases. It is respectfully submitted that the High Court’s understanding is correct, both in terms of the Supreme Court’s 2022 judgment, and in terms of consistency with the Kenyan Constitution’s text, design, and historical influences in mandating the separation of powers.
The action now moves to the Supreme Court where, once again, the meaning of core ideas such as devolution and the separation of powers – and indeed, the true meaning of the Supreme Court’s own 2022 judgment – will be debated. It will be interesting to see how the Supreme Court resolves these questions, which go to the heart of Kenya’s transformative 2010 Constitution, and how it organises, shapes, and constrains public power.