Blow to National Assembly as High Court suspends move to deny counties share of Roads Maintenance Levy Fund

Ongoing construction of Kenol- Sagana - Marwa highway. [Mose Sammy, Standard]

The High Court has issued a conservatory order suspending the decision by the National Assembly not giving recognition to County Governments to be considered as beneficiaries of Roads Maintenance Levy Fund in the financial years 2024-2025 and 2025-2026.

Issa Chamao, Patrick Ekirapa, Paul Kirui, International Legal Consultancy Group and Council of Governors are listed as petitioners in a court case challenging the constitutionality of a decision made on September 28 this year by the National Assembly to remove County Governments as beneficiaries of the Road Maintenance Levy Fund.

Justice Lawrence Mugambi sitting at the Milimani Law Courts in Nairobi certified the matter as urgent after perusing the notice of motion dated November 16 this year together with the certificate of urgency of the same date and the sworn affidavit by the Council of Governors CEO Mary Mwiti and Issa Chamao who is listed as the first petitioner in the case.

“Pending the hearing and determination of this application, a conservatory order is hereby issued suspending the decision of the National Assembly on September 28, 2023 not giving recognition to County Governments to be considered as beneficiaries of the Roads Maintenance Levy Fund in the financial years 2024-2025 and 2025-2026,” said Mugambi.

 The Judge gave 14 days for the application to be served, with responses to be filed and served 14 days thereafter with leave granted to the petitioners to file and serve a rejoinder within 14 days from the date of receipt of responses with the matter set up for mentioning on January 17, 2024 for further directions.

The National Assembly of Kenya, Kenya Roads Board, Cabinet Secretary for the National Treasury, Cabinet Secretary for Roads, the Ministry of Roads, Kenya Urban Roads Authority and Attorney General are listed as respondents while the Commission on Revenue Allocation, the Senate of Kenya and Intergovernmental Relations Technical Committee are listed as interested parties in the court case.

Advocate Peter Wanyama representing the five petitioners told the court that to fully implement the constitutional objectives of devolution, it was required that the national government amend the Kenya Roads Board Act 1999 to provide for the maintenance of county roads from the Roads Maintenance Levy Fund.

“Moreover, it was imperative to appropriately amend the provisions of the Kenya Roads Act 2007 to provide for an institutional framework that supports the constitutional classification of roads being national trunk roads and county roads,” Wanyama told the court.

The Advocate told the court that the Kenya Roads Act 2007 is not aligned with the 2010 Constitution with both the Kenya Urban Roads Authority and the Kenya Rural Roads Authority continue to exist and have taken over the functions of the county relating to County roads contrary to the provisions of section 18 of Part 1 of the Fourth Schedule of the Constitution.

Wanyama told the court despite existence of the Kenya Urban Roads Authority and the Kenya Rural Roads Authority in the devolution space, county governments have numerously pushed for funds from the Road Maintenance Levy Fund to maintain roads in the 2013-2022 financial years, they received funds in the form of conditional grants and sometimes through the equitable share to maintain roads.

He further informed the court that up to the financial year 2022-2023 financial year, County Governments have so far received Sh 50 billion from the Road Maintenance Levy Fund to maintain County Roads-which are recognized in the 2010 Constitution.

“In a meeting held in Naivasha on February 11 this year the National & County Government Coordinating Summit that comprises the President and all the 47 County Governors -passed a resolution that County Governments should receive funds from the Road Maintenance Levy for the 2024/2025 financial year- as conditional grants,” Wanyama told the court.

 The Advocate told the Court that in a sudden decision made on September 28 this year, the National Assembly- citing section 6 of the draconian Kenya Roads Board Act 1999, unilaterally decided to remove County Governments as beneficiaries of funds of the Road Maintenance Levy Fund in the financial year 2024-2025 and 2025/2026.

Wanyama told the court that the decision made on September 28 this year by the National Assembly has far-reaching implications on the financing of the devolved government system, moreover, the same was made without public participation or concurrence of the Senate of Kenya.

The five petitioners in the case asserted that the said decision made by the National Assembly is illegal and unconstitutional, specifically undermining the mandatory constitutional objectives of the devolved system and the functions of county governments in the transport sector.

“It is important that this Court urgently determines the constitutionality of the decision of the National Assembly of 28th September 2023 not to recognize county governments as beneficiaries of the Road Maintenance Levy Fund in the financial year 2024-2025 and 2025/2026,” Wanyama told the court.

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