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Judgment

IN THE COURT OF APPEAL AT NAIROBI (CORAM: MUSINGA (P), TUIYOTT & MUCHELULE, JJ.A.) CIVIL APPEAL NO. E884 OF 2024 BETWEEN THE NATIONAL ASSEMBLY..............................1ST APPELLANT AND WANJIRU GIKONYO.......................................1ST RESPONDENT CORNELIUS ODUOR OPUOT...........................2ND RESPONDENT THE SENATE OF THE REPUBLIC OF KENYA...3RD RESPONDENT THE HON. ATTORNEY GENERAL……..............4TH RESPONDENT NATIONAL GOVERNMENT CDF BOARD ………5TH RESPONDENT CABINET SECRETARY, TREASURY................6TH RESPONDENT COUNCIL OF GOVERNORS.............................7TH RESPONDENT CHARLES AGAR OWINO.................................8TH RESPONDENT PETER RUNKIN OUMA ONYANGO...................9TH RESPONDENT ISABEL NYAMBURA WAIYAKI.......................10TH RESPONDENT (Being an appeal against the judgment and decree of the High Court at Nairobi (K. Kimondo, R.E. Aburili & M. Thande, JJ.) dated 20th September 2024 in HC Const. Petition No. 178 of 2016 ********************************** **** CONSOLIDATED WITH CIVIL APPEAL NO. E868 OF 2024 BETWEEN THE NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND BOARD………………………2ND APPELLANT Page 1 AND WANJIRU GIKONYO.......................................1ST RESPONDENT CORNELIUS ODUOR OPUOT..........................2ND RESPONDENT THE NATIONAL ASSEMBLY…………………….…3RD RESPONDENT THE SENATE……..........................................4TH RESPONDENT THE HON. ATTORNEY GENERAL ………………5TH RESPONDENT CABINET SECRETARY, TREASURY…...........6TH RESPONDENT Page 2 COUNCIL OF GOVERNORS….........................7TH RESPONDENT CHARLES AGAR OWINO…............................8TH RESPONDENT PETER RUNKIN OUMA ONYANGO…..............9TH RESPONDENT ISABEL NYAMBURA WAIYAKI....................10TH RESPONDENT (Being an appeal against the judgment and decree of the High Court at Nairobi (K. Kimondo, R.E. Aburili & M. Thande, JJ.) dated 20th September 2024 in HC Const. Petition No. 178 of 2016 ********************************** **** JUDGMENT OF THE COURT 1. On 20th September 2024, the High Court (Justices K. Kimondo, R. E. Aburili and M. Thande) sitting at Milimani Law Courts in Nairobi, determined a petition that had been filed by Wanjiru Gikonyo and Cornelius Oduro Opuot (the 1st and 2nd respondents) questioning the constitutionality of the National Government Constituency Development Fund Act, 2015 (NGCDF Act, 2015). The Act replaced the Constituencies Development Fund Act, 2013 which had been declared unconstitutional in previous litigation. 2. The respondents’ case was that the NGCDF Act, 2015 violated the principles of public finance in the sense that, through the Division of Revenue Bill, it allocated a portion of the national revenue to the Fund before vertical division between the County and National Government, and that this was in violation of Articles 201 and 203 of the Constitution. Secondly, that the spirit of sections 3(k), 3(1), 4(8), 24(b), 25(5), (7), (8) 26(2), 27(10), 36(2) & (3), 48 and 52 of the Act permitted a possible duplication of projects and assets contrary to the constitutional principles of Page 3 prudent use of resources, responsible financial management and clear fiscal planning guaranteed under Article 201 of the Constitution. Thirdly, that the Division of Revenue Page 4 Bill related to matters of counties and sharing of revenue between the two levels of government, yet the Senate and the Commission of Revenue Allocation were not consulted as required by Article 205 of the Constitution. 3. The petition asserted that the entire framework of the NGCDF Act, 2015 offended the doctrine of separation of powers, and violated the principle of division of functions between the two levels of government and therefore defeats the very essence of devolution. It was contended that sections 15(4), 19, 23(1), 43 and 53 of the NGCDF Act, 2015 allow members of the National Assembly to control the implementation of the Act and the administration of the Fund contrary to the principles of separation of powers and in violation of Articles 93, 95, 96, 129 to 131 of the Constitution; and that the architecture of the entire Act violates the principle of division of functions. 4. The respondents’ further case was that the NGCDF Act, 2015 elevated the constituency to a third level of Government contrary to Articles 1(4), 2(1), (2), 3(2), 6(1), 10, 174, 186 and 189 of the Constitution, and consequently interferes with the basic structure of the Constitution. 5. Lastly, the petition claimed that the NGCDF Act, 2015 was philosophically and structurally similar to the 2013 Act in so far as it undermined devolution, caused conflicts between the national and county governments and between members of the National Assembly and Governors. Page 5 6. The National Assembly, the 1st appellant, and the National Government Constituencies Development Fund Board, 2nd Page 6 appellant, opposed the petition and defended the Fund on the basis that it was an instrument of the national government which was financed from the national government’s equitable share and limited to the implementation of national government functions at the grassroot level. They maintained that members of the National Assembly were excluded from direct management of the fund, and that any role played by the National Assembly was purely oversight, as contemplated under Article 95 of the Constitution. It was deponed that a member of the National Assembly was not a member of the National Government Constituency Development Fund Committee (the Constituency Committee), and therefore was not involved in the implementation of the Fund. Reference was made to sections 43 and 50 of the NGCDF Act, 2015 establishing both the Constituency Committee and the Select Committee of the Fund and their mandate. In their view, the role of the National Assembly was purely oversight as stipulated under Article 95(5)(b) of the Constitution. In this regard, Parliament approves the names of the persons selected to serve in the Constituency Development Fund Committee. 7. The appellants’ further case was that NGCDF Act, 2015 did not violate the doctrine of separation of powers, and that the constituency is a unit, not of the devolved government, but of the national government, and relied on the Report of the Committee of Experts on Constitutional Review dated 11th October 2010. In addition, that Article 206(1)(a) of the Constitution empowered Parliament to establish public funds for a specific purpose and that the Fund was one such Page 7 fund. Page 8 8. It was denied that the NGCDF Act, 2015 facilitates the performance and implementation of functions of the devolved government. It was stated that the budget of the NGCDF Board is approved by the Cabinet Secretary in the Act. Reference was made to section 24 of the Act which gives the national government authority to implement projects falling within its mandate. It was averred that emergency services, sports and environmental activities were not reserved exclusively for county government as urged by the 1st and 2nd respondents. It was stated that the NGCDF Act, 2015 did not require approval of the Senate; that the fund was anchored on strategic documents and policies aligned to the national government plans; and that the structure of the Fund adheres to principles of finance, prudent use and responsible financial management, through a careful and elaborate identification of projects implemented under the Fund. In addition, there is a project management committee and a constituency committee oversighting the process. It was pleaded that the projects under the Fund were complementary to other development efforts by the national government. As such, there was no parallel and duplicative offices created under the NGCDF Act, 2015. 9. The Hon. The Attorney General (4th respondent) and the Cabinet Secretary, Treasury (6th respondent), agreed with the 1st appellant. The Senate of the Republic of Kenya (3rd respondent) filed grounds to support the petition but did not file any submissions. The Council of Governors (7th respondent) did not file pleadings or submissions. Page 9 10. An application was allowed that enabled the introduction of amendments made to the NGCDF Act, 2015 in 2022 and 2023. 11. The trial court heard the parties to the petition. From the pleadings and submissions, the court identified the following issues for determination: (i) whether the petition had been rendered moot by the 2022 and 2023 amendments to the Act; (ii) whether the impugned Act violated the principle of and structure of devolution in the Constitution; (iii) whether the impugned Act violated the basic structure of the Constitution; (iv) whether the Act offended the division of functions between the two levels of government; (v) whether the Act violated the doctrine of separation of powers; (vi) whether the Act is in breach of the principles of public finance; (vii) whether the process of enactment of the Act was unlawful for failure to involve the Senate and the Commission on Revenue Allocation; (viii) whether allocation of monies to the Fund before the vertical division of the national revenue between the County and National Government was unlawful; and, (ix) whether the petitioners were entitled to the reliefs sought. 12. The learned Judges restated the applicable principles of constitutional interpretation, emphasising that the Constitution must be read holistically and purposively in a Page 10 manner that Page 11 promotes its values, principles and objectives, particularly devolution, accountability and good governance. 13. On the question of mootness, the learned Judges held that, although the 2022 and 2023 amendments to the NGCDF Act, 2015 repealed, deleted and or substituted several provisions that had been directly challenged, specifically sections 15(4), 19, 43(2)(e) and 53, thereby rendering the challenge to those particular provisions moot, the amends do not extinguish the broader constitutional controversy. The court noted that the petition had not been amended to challenge the newly introduced provisions, but that did not dispose of the dispute in its entirely. 14. The court observed that significant aspects of parliamentary involvement in the governance of the Fund persisted despite the amendments. In particular, the amended section 15(1) (e) and (2) continued to subject appointments to the NGCDF Board, though recommended by the Public Service Commission and made by the Cabinet Secretary, to approval by the National Assembly. Similarly, while the original section 19 on removal of Board members had been repealed, the newly introduced section 19A vested the National Assembly with extensive powers of vetting, approval and effective veto over nominees to fill vacancies on the Board, as well as influence over the Board’s budget. 15. The court further noted that the amendments did not cure concerns arising from section 43 of the NGCDF Act, 2015. The Constituency Committee and the office of the Fund Page 12 Account Manager remained tied to the life of Parliament, a feature the Page 13 court considered indicative of continued control or influence by the incumbent Member of the National Assembly. Notably, certain subsections relating to the tenure of the Fund Account Manager were never amended, and internal inconsistencies remained within section 43 following the partial deletion of references to by-elections. 16. In the Court’s view, these surviving provisions demonstrated that the core constitutional issues raised in the petition, particularly those relating to parliamentary involvement, institutional control and governance of the Fund remained live and unresolved. Consequently, the court concluded that the 2012 and 2023 amendments did not negate the substance of the petition, and that there remained a substantive dispute warranting full adjudication on the constitutionality of the Act as a whole. 17. On the substance of devolution, the court reiterated that devolution was the cornerstone of the 2010 constitutional architecture, designed to promote efficient service delivery, clarity of responsibility and optimal utilisation of public resources. It found that the creation of the constituency as a service delivery unit under the NGCDF Act leads to multiple channels of funding and implementation of projects, wastage of public resources and lack of clarity. All these undermine the principle of devolution and the architecture of the Constitution on the two levels of government, the separation of powers and the primary oversight role of Parliament. 18. As regards the basic structure doctrine, the court held that the doctrine is not applicable in Kenya as held by the Page 14 Supreme Court Page 15 in Attorney General & 2 Others -vs- Ndii and 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR) and that any amendments to the Constitution had to be carried out in strict conformity with the normative standards and the provisions of Chapter Sixteen of the Constitution. Ultimately, the court held that the petitioners’ challenge to the NGCDF Act, 2015, in so far as it was premised on an alleged violation of the doctrine of basic structure of the Constitution, was without merit and therefore failed. 19. On the question of duplication of functions and public finance, the trial Judges, while relying on the decision in Institute for Socia l Accountability & Another -vs- Nationa l Assembly & 5 Others [2022] KEC 39 (KCR), found that, one, the Fund had the potential of creating confusion in the implementation of projects by the two levels of government, and second, duplication of funding for the same projects was inevitable, leading to wastage of scarce public resources. Thirdly, that the Fund fostered a state of lack of clarity regarding which level of government is responsible for which particular project, thereby compromising accountability. 20. Regarding the doctrine of separation of powers, the court observed that Parliament’s constitutional role was to legislate, represent and exercise oversight over national revenue and expenditure. Any involvement of members of the National Assembly, however indirect, in the administration and implementation of development projects compromised that oversight role and blurred the separation between the legislative and executive functions. It was emphasised that Page 16 permitting Page 17 legislators to operate, even from the shadows, within executive structures fostered conflicts of interest and eroded constitutional checks and balances. 21. On the legislative process, the court found that the NGCDF Act, 2015 established an anomalous executive oriented function at the constituency level, situated uneasily between the national and county governments, and incompatible with the Constitution’s development framework. Even assuming that the Fund was financed from the National Government’s allocation, the court was guided by the Supreme Court’s pronouncement in Institute for Social Accountability (supra) that the Fund distorts the devolved structure of Government and creates institutional arrangements inconsistent with the constitutional distribution of functions between the two levels of government. In light of this distortion, the court held that the enactment of the statute without concurrence of the Senate was unconstitutional, as it ran afoul of the constitutional requirements governing legislation affecting county governments. 22. As for the allocation of monies to the Fund before vertical division of the national revenue between the county government and national government, the learned Judges held that, the NGCDF Act, 2015, when read together with the relevant constitutional provisions and the Supreme Court’s decision in Institute for Social Accountability, the constitutional scheme does not permit the national government to allocate funds to its agencies before the division of revenue is undertaken. The allocation of revenue Page 18 must first be effected through a Division of Revenue Bill Page 19 in accordance with Article 218 of the Constitution, and only thereafter may the national government distribute resources to its agencies from its equitable share. Accordingly, the court held, the allocation to national government agencies must be drawn strictly from the national government’s share as determined under the Division of Revenue Act contemplated in Article 218(1) (a). 23. In the final result, the court declared that the NGCDF Act, 2015 as amended in 2022 and 2023 was unconstitutional. It was ordered that the National Government Constituencies Development Fund and all its programmes, projects and activities shall cease to operate at the stroke of midnight on 30th June 2026. The order of invalidity was therefore suspended for the allocated monies in the financial year to be spent on the projects indicated. Each party was ordered to pay own costs in the petition. 24. The decision aggrieved the appellants. They came before this Court on appeal. The 2nd appellant’s memorandum of appeal dated 31st October 2024 contained 18 grounds. They alleged that the learned Judges had erred in law, principle and facts as follows: “1) The learned Judges erred in law, principles and facts by failing to establish that the Petition dated 4th May 2016 had been rendered moot by (Amendment Act No. 24 of 2022) (“2022 amendments”) and the (Amendment Act No. 21 of 2023) (“2023 amendment”) to the National Government Constituencies Development Fund Act 2015 herein after referred to as “the 2015 Act” Page 20 which fundamentally altered the 2015 Act thus negating the entire substratum of the Petition. Page 21 2)The learned Judges erred both in law and fact by rendering themselves on the issues outside the Petition. Whereas the issues in question was unconstitutionality of the 2015 Act the learned Judges went ahead and made a determination on 2022 and 2023 amendments outside pleadings despite the Petitioners having failed to amend the Petition. 3)The learned Judges erred both in law and fact by finding that the 2015 Act violates the principles of and structure of devolution. The learned Judges failed to appreciate that the Constitution mandates a national State organ to ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate to do so having regard to the nature of the service. The 2015 Act does not establish a “third” or “parallel” level at the constituency and does not distort the devolved structure of government but only used by the national government to implement its programmes and policies and deliver services to the citizenry through National Government Constituencies Development Fund, herein. 4)The learned Judges erred in law and fact by finding that the 2015 Act offends the division of functions between the two levels of governments. The learned Judges while erroneously relying on the 2022 and 2023 amendments failed to deduce that the Fund only finances identified and prioritized projects in respect of works and services falling within the exclusive functions of the national government as provided in the Constitution. 5)The Learned Judges erred in fact and law by failing to interrogate that there is neither confusion in the implementation of projects by the two levels of government nor duplication of funding for projects. The learned Judges Page 22 placed reliance on section 22 of the 2015 Act dealing with Page 23 staff of the Board and was not even relevant at all while section 25 (8) and 10 had been repealed. 6)The learned Judges erred in law and fact by selectively and narrowly focusing and indeed failing to correctly interpret section 8 of the 2015 Act, by relying on deleted provisions thereby arriving at a wrong finding that the 2015 Act deals with functions reserved for the county governments and ultimately declaring the 2015 Act in entirety as being unconstitutional. The learned Judges failed to consider the functions of the Fund in its interpretation of section 8 of the 2015 Act. 7)The learned Judges erred in law and fact by failing to understand the 2015 Act in entirety thereby arriving at a wrong finding that the 2015 Act violates the doctrine of separation of powers. The court failed to appreciate that the role of National Assembly in respect of the Fund is only limited to oversight. The learned Judges further made unfounded conclusions that member of National Assembly is in the shadows of the fund, controlling its operations at the constituency level. 8)The learned Judges erred in law and fact by arriving at a finding that the 2015 Act is in breach of the principles of public finance. The learned Judges failed to interrogate the manner in which the Fund is administered, utilized and accounted with clear constitutional and statutory mechanisms of prudent and responsible use of resources being strictly adhered to. The learned Judges failed to interpret the 2015 Act in a purposive and manner giving effect to the 2015 Act. 9)The learned Judges erred in law and fact by arriving at a finding that enactment of the 2015 Act without concurrence of the Senate Page 24 ran foul of the Constitution. The learned Judges misdirected their minds as the 2015 Act does not deal with Page 25 matters concerning Counties whatsoever. Concurrence of the Senate in enactment of the 2015 Act was therefore not required. 10) The learned Judges erred both law, principle and fact by declaring the entire 2015 Act as being unconstitutional. The learned Judges failed to address whether the provisions it deemed unconstitutional for offending the Constitution could be severed from the rest of the provisions of the Act leaving the remaining parts of the Act operational. 11) The learned Judges erred both in law and fact by heavily relying on the provisions of the repealed Constituencies Development Fund Act of 2013, which was no longer applicable and was not the subject of the Petition at the time of filing of the Petition and delivery of judgment therefore failing to address the issues before it and further arriving at erroneous conclusions 12) The learned Judges erred in law and fact by placing heavy reliance in the Supreme Court's judgment in Institute for Social Accountability & another versus National Assembly & 3 others & 5 others [2022] KESC 39 (KLR), which dealt with the repealed Constituency Development Fund Act 2013 therefore missing to conclusively and independently address their minds to the issues placed before them for determination. The learned Judges failed to analyze the provisions of the 2015 Act. 13) The learned Judges failed to adequately interrogate the 2015 Act and subsequent 2022 and 2023 amendments which fundamentally altered the structure and purpose of the 2015 Act and the Fund to be in consonance with the Constitution. The learned Judges took a restrictive and impractical view of the 2015 Page 26 Act. Page 27 14) The learned Judges erred in law and fact by failing to effectively consider response(s), submissions and expert reports filed by the Appellant in the matter, which were crucial in providing context on devolution and comparative studies regarding the structure and purpose of the Fund under the 2015 Act. The judgment lacks transparency in how the submissions and expert reports were evaluated or whether they were considered at all. 15) The learned Judges erred in law and fact by failing to correctly interpret several provisions of the 2015 Act. The court erroneously stated that the term of the Constituency Committee is tied to the life of Parliament, contrary to section 43(8) of the 2015 Act which limits the members of the Constituency Committee term to two years renewable but shall expire upon the appointment of a new Constituency Committee in the manner provided by the Act. 16) The learned Judges further incorrectly interpreted the term of the Fund Account Manager as tied to the life of Parliament, contrary to section 43(9) of the 2015 Act. The Fund Account Manager is an employee of the Appellant under the provisions of Section 22 of the Act and terms of service and is therefore not dependent on the life/ term of a Member of Parliament. 17) The court erred in law and fact by relying on section 43(9) of the 2015 Act to erroneously conclude that a member of the National Assembly implements projects at the Constituency and that the 2015 Act granted the National Assembly the power to implement projects in the Constituency. 18) In all circumstances, the learned Judges failed to properly direct their minds to the Page 28 facts, issues and the law thereby arriving at an erroneous judgment.” Page 29 25. The 1st appellant’s memorandum of appeal dated 19th November 2024 contained 13 grounds as follows:- “1) The learned Judges erred in allowing the petition dated 4th May 2016 and declaring the National Government Constituencies Development Fund Act, 2015 as amended in 2022 and 2023 unconstitutional. 2) The learned Judges erred in law in failing to hold that the NGCDF (Amendment) Act, 2022 and the NGCDF (Amendment) Act, 2023 had rendered the petition before the high court (sic) moot. 3) The learned Judges erred in law in determining that the National Government Constituencies Development Fund Act, 2015 violates the principle and structure of devotion in the Constitution. 4) The Learned Judges erred in law in determining that the National Government Constituencies Development Fund Act, 2015 is in breach of the principles of public finance. 5) The Learned Judges erred in law in determining that the National Government Constituencies Development Fund Act, 2015 offends the division of functions between the National Government and the County Governments. 6) The Learned Judges erred in law in determining that the National Government Constituencies Development Fund Act, 2015 violates the doctrine of separation of powers. 7) The Learned Judges erred in law in determining that the National Government Constituencies Development Fund Act, 2015 was unlawful for failure to involve the Senate. 8) The Learned Judges erred in law and in fact in determining that the Constituency is not and cannot be a unit for service delivery. 9) The Learned Judges misapprehended the provisions of sections 2, 8, 14, 15, 19, 21, 22, 24, 25, 27, 36, 43 and 53 of the National Page 30 Government Constituencies Development Fund Act, 2015 and the entire NGCDF Act, 2015 and thereby reached Page 31 a wrong interpretation as to the constitutionality of the Act. 10)The Learned Judges erred in law and fact in concluding that the NGCDF Act creates duplication of funding and projects, without evidence. 11)The Learned Judges ignored and failed to consider expert evidence showing that the NGCDF aligns with prudent public resource use and avoids duplication of county functions. 12)The Learned Judges erred in law and in fact in failing to exercise due judgement in the matter and by putting undue reliance on the Supreme Court decision in Institute for Social Accountability & Another v National Assembly & Others (Petition 1 of 2018), without considering its distinguishing circumstances. 13)On the whole, the decision of the High Court appeal is erroneous in law and in fact.” 26. In each of the appeals, it was sought that the appeal be allowed and that the judgment and decree of the trial court be set aside. 27. We directed that the two appeals be consolidated. These were Civil Appeal No. E868 of 2024 by the 2nd appellant and Civil Appeal No. E884 of 2024 by the 1st appellant. The appeals were heard together in Civil Appeal No. E884 of 2024. 28. When the appeal came up for hearing on 1st December 2025, learned counsel Mr. Otiende Amollo (SC), Mr. George Murugara, Mr. Peter Kaluma, Mr. Mwengi Mutuse, Mr. Sheriffson Mwendwa, Mr. Josephat Kuyioni and Mr. Mitchel M’Omom appeared for the 1st appellant. Senior Counsel Mr. Waweru Gatonye along with learned counsel Mr. Miencha and Page 32 Ms. Chepng’eno appeared for the 2nd appellant. Learned counsel Mr. Malidzo Nyawa appeared for the 1st and 2nd respondents, and learned counsel Mr. Peter Thande Kuria appeared for the 4th and Page 33 6th respondents. There was no appearance of the 3rd, 7th, 8th, 9th and 10th respondents. 29. Before we deal with the rival submissions and the consideration of issues by the parties, we reiterate what this Court said in Imanyara & 2 Others -vs- Attorney General (Court of Appeal 98 of 2014 [2016] KECA557 (KLR) in regard to a first appeal, that: “This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words: - “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or Page 34 had plainly gone wrong, the appellate court Page 35 will not hesitate to so decide ...”” 29. During the hearing of this appeal, Senior Counsel Mr. Otiende Amollo and Senior Counsel Mr. Waweru Gatonye took issue with the learned Judge’s declaration that the NGCDF Act, 2025 as amended in 2022 and 2023, was unconstitutional when the petition that had been filed in 2016 had not been amended to include the 2022 and 2023 amendments. According to them, the petition had not questioned the constitutionality of the 2022 and 2023 amendments. The finding by the learned Judges, it was argued, offended settled law that courts can only decide issues properly pleaded. In regard to an Act of Parliament, it was argued that there was always the presumption of constitutionality, which meant that the amendments were constitutional, therefore the learned Judges lacked jurisdiction to address them. 30. On the twin question whether the NGCDF Act, 2015 was unconstitutional for not having been taken to the Senate for concurrence and whether the Act was unconstitutional for offending the principle of devolution, Senior Counsel Mr. Otiende Amollo submitted that the Supreme Court in Senate & 3 Others -vs- Speaker of the National Assembly & 10 others, Petition No. 19 (E027) of 2021 [2025] KESC 11 (KLR) had found that the Act did not affect the functions and powers of counties and therefore Senate concurrence was not required in its enactment. He further submitted that the High Court had erred in relying on the finding by the Supreme Court in Institute of Socia l Accountability which had declared the 2013 CDF Act unconstitutional; that the Act, the subject of the petition, had been substantially amended Page 36 in 2022 and 2023, and that this Page 37 distinction rendered the Supreme Court decision irrelevant and non-binding. 31. On whether the NGCDF Act, 2015 offended the principle of separation on of powers, Senior Counsel argued that, following the Act and amendments, members of the National Assembly neither sit on CDF Committees nor determine projects; that their role was only limited to public participation and lawful oversight. 32. Senior Counsel submitted that the High Court had erred in suggesting that the Act created a third tier of government, emphasizing that Article 1(4) of the Constitution recognized only two levels of government: national and county; and that the NGCDF Act, 2015 operated strictly within the national government sphere. It was argued that the High Court conflated devolution with decentralization; that the Constitution permitted the national government to decentralize funds and services to lower administrative units without creating a new level of government. Senior Counsel further argued that the 2022 and 2023 amendments to the Act were necessitated by the earlier court decisions on the 2013 CDF Act and were undertaken out of abundance of caution to ensure compliance by specifically completely removing members of the National Assembly from the administration and management of the Fund. These amendments, counsel submitted, had addressed all issues previously faulted by courts and reinforced the Act’s constitutionality. 33. Regarding the finding that the constituency cannot be a unit Page 38 of service delivery, Senior Counsel pointed out that the finding Page 39 contradicted the express recognition of constituencies as national government service delivery units under the National Government Coordination Act, 2013. Lastly, Senior Counsel submitted that the 1st and 2nd respondents had failed to properly invoke Article 165 of the Constitution by not identifying specific statutory provisions that offended specific constitutional provisions, and that the High Court similarly failed to demonstrate how the Constitution was violated. 34. Learned counsel Mr. Kuyioni submitted that the High Court had erred in finding that the NGCDF Act, 2015 violated the principles of public finance on the basis that it dealt concurrently with national and county functions. He submitted that the finding was incorrect, given that under section 24 of the Act there was express provision stating that the funded projects belonged to the national government, a position the Supreme Court had observed. There was therefore no duplication or encroachment onto county functions. Further, it was clear from section 4(1) of the Act that the Fund was established as a national government fund drawn from the national government’s share of revenue after vertical division, and therefore did not offend public finance principles. 35. On the question of mootness, learned counsel submitted that the High Court had wrongly assumed jurisdiction despite extensive amendments to the Act in 2022 and 2023 that had fundamentally altered, restructured and or repealed 29 sections, with the result that the substratum of the petition no longer existed and the dispute was no longer live at the time Page 40 the court rendered its decision. Page 41 36. Senior Counsel Mr. Waweru Gatonye argued that the 2022 and 2023 amendments to the NGCDF Act, 2015 specifically changed and repealed key provisions of the Act which formed the basis of the petition. These changes included sections related to committee membership tenure, oversight and governance. They had introduced new structures such as merit-based appointments, restructured constituency committees, improved oversight mechanisms and clear restrictions on projects related to national government projects. As a result, the core of the petition was eliminated, making the dispute moot and leaving no live controversy for the court to decide. Therefore, the High Court should not have assumed jurisdiction. 37. Learned counsel Mr. Miencha faulted the High Court for failing to interpret the NGCDF Act, 2015 holistically as required by Article 259, and had instead relied on reasoning grounded on provisions that no longer existed, and had ignored the substantial amendments introduced in 2022 and 2023. It was further submitted that the court had failed to consider the expert report filed pursuant to its own directions, which demonstrated that the national government may lawfully decentralize service delivery to the lowest levels without offending the principle of devolution. On separation of powers, learned counsel maintained that the Fund is administered by a Board established under sections 14 and 15 as amended in 2023; and that the National Assembly has been removed from its administration. He submitted that the Fund is now an executive function under the national government, and not a Page 42 third tier of government. Lastly, learned counsel submitted that the High Court had wrongly Page 43 found a violation of public finance principles of assuming duplication of projects despite clear provisions restricting the Fund to national government projects and the absence of any evidence or empirical data demonstrating such duplication. 38. Learned counsel Mr. Murugara argued that the 2022 and 2023 amendments to the NGCDF Act, 2015 addressed all prior constitutional concerns, including removing any role of Members of Parliament in managing the Fund. He emphasized that the petition challenging the Act was moot because it did not incorporate these amendments. Learned counsel clarified that the Fund was administered by a Board under the Ministry of National Treasury and Economic Planning, with projects identified by the community and implementation by project management committees, such as School Boards of Management, without any involvement by the Member of Parliament. He highlighted safeguards against duplication (section 42) and strict limits on administrative costs (6% under section 25), and stressed that the funds were primarily for national government projects. On governance, learned counsel submitted that sub-counties are aligned under the National Government Coordination Act, ensuring proper oversight. Counsel contended that allegations of Member of Parliament’s interference were speculative, lacked evidence, and contradicted the presumption of constitutionality. Finally, it was submitted that the Supreme Court never considered the NGCDF Act, 2015 and its amendments, and that, if it had, the outcome would have been different. In reiterating that the NGCDF Act, 2015 was materially different from the 2013 Act, learned counsel Mr. Page 44 Kaluma submitted that section 43 of the Act establishes the Page 45 CDF Committee for every constituency, and that it was the Committee that was responsible for identifying, prioritizing and submitting projects for funding to the Board; that the Committee consisted of members, including national government officials, youth representatives and persons living with disabilities. Learned counsel submitted that the Committee was crucial for the decentralized administration of the Fund to enhance development projects at the grassroot level. Under section 43(1) of the Act, we were urged, the Fund Account Manager is responsible for the Fund and is a permanently employed officer under the Department of Planning of the Ministry of National Treasury and Economic Planning, and is transferable. He is a signatory to the Fund account. The sub-county accountant is also a signatory to the account. Lastly, it was pointed out by learned counsel that the Member of Parliament does not sit in the Committee, and neither is he a signatory to the account at the Constituency level, or at all. 39. Learned counsel Mr. Peter Thande Kuria supported the appellants and agreed with the submissions made to support the appeal. Learned counsel argued that the High Court had wrongly held that the Senate had a role in the legislation concerning matters that are purely within the national mandate, which was contrary to what the Supreme Court had held. Secondly, that, in holding that the Fund offends the principles of devolution, the learned Judges had failed to distinguish between devolution and decentralization as permitted under Article 6(3) of the Constitution. It was argued that the Constitution expressly allows the national Page 46 Government to decentralise services and resources to the lowest service delivery units under section 14 Page 47 of the National Government Coordination Act. Learned counsel further submitted that the High Court failed to adequately consider the expert reports and the effect of the 2022 and 2023 amendments, which were enacted to cure the constitutional infirmities identified in earlier litigation by removing Members of Parliament from the administration of the Fund and anchoring it under the national executive. On that basis, the learned counsel urged us to find that the High Court’s declaration of unconstitutionality was erroneous and allow the appeal. 40. Learned counsel Mr. Malidzo Nyawa for the 1st and 2nd respondents opposed the appeal, and supported the judgment of the High Court and its findings. According to counsel, the NGCDF Act, 2015 impermissibly encroaches on county government functions by authorizing the use of the Fund for activities that fall within devolved functions under the Fourth Schedule. In so doing, it creates uncertainty and duplication between national and county governments, contrary to the Supreme Court’s guidance on subsidiarity and functional clarity. It was submitted that broadly framed provisions, including those allowing funding of community- level projects, risk parallel performance of county functions by national government, leading to inefficiency and wastage of public resources. On separation of powers, counsel contended that despite claims that Members of Parliament have been removed from the Fund’s management, statutory provisions effectively tie the tenure and security of fund managers and committees to the term of the sitting Member of Parliament, thereby creating conflicts of interest and giving Members of Page 48 Parliament de facto control over the Fund, which is Page 49 unconstitutional in purpose and effect. Learned counsel invoked Kenya’s constitutional history to argue that Parliament was deliberately insulated from the executive and development functions, and that allowing Members of Parliament to influence development funds undermines their core legislative, oversight and representative roles. 41. On public finance, learned counsel argued that the Fund establishes duplicative and parallel administrative structures, despite the existence of adequate national and county executive mechanism, resulting in inefficient duplication of functions and wastage of resource in violation of Article 201. 42. Lastly, learned counsel submitted that the NGCDF Act, 2015 threatens devolution; improperly sidelines county governments; and perpetuates unconstitutional involvement of Members of Parliament in development functions. He urged that the appeal be dismissed. 43. We have considered the record, the impugned judgment, the grounds of appeal and the rival submissions. We have framed the following seven broad issues as arising for determination:- (a) whether the High Court erred in holding that the petition was not rendered moot by the 2022 and 2023 amendments; (b) whether the NGCDF Act, 2015, as amended in 2022 and 2023, violated the principles of the structure of devolution and offends the division of functions between the national and county governments; Page 50 (c) whether the NGCDF Act, 2015 violates the doctrine of separation of powers; (d) whether the NGCDF Act, 2015 is inconsistent with the constitutional principles of public finance; (e) whether the process of enactment of the NGCDF Act, 2015 was unlawful for failure to involve the Senate; (f) whether the remedy of striking down the entire Act was disproportionate and inconsistent with severability; and (g) whether the appellants are entitled to the reliefs sought. 44. Before embarking on the determination of these identified issues, it is important to reiterate that Article 259 of the Constitution obligates us to interpret the Constitution in a manner that – (a) promotes its purposes, values and principles; (b) advances the rule of law, and human rights and fundamental rights in the Bill of Rights; (c) permits the development of law; and (d) contributes to good governance. 45. The Supreme Court in Cabinet Secretary for the National Treasury and Planning & 4 Others -vs- Okoiti 52 Others; Bhatian (Amicus Curiae) [2024] KESC 63 (KLR) noted as follows:- “Within this context, we deem it necessary to outline the following guidelines, which we draw from our own previous decisions and persuasive decisions from other jurisdictions to assist courts in the event that a declaration of unconstitutionality of a statue or part thereof, is to be made: (a)There is general but rebuttable Page 51 presumption that a statutory provision is consistent with the Constitution. Page 52 (b)The party that alleged inconsistency has the burden of proving such a contention. (c) In construing whether statutory provisions or part thereof offend the Constitution, courts must subject the same to objective inquiry as to whether they conform with the Constitution. (d) The Court must determine the object and purpose of the impugned statue and consider the mischief which the statute sought to cure and or arrest. (e)The Court must clearly set out what provision is unconstitutional by juxtaposing the offending provision against the Constitution. (f) A court must clearly and with precision explain the finding of unconstitutionality. (g)The court must consider the effect of that declaration and, where necessary, suspend the application of that unconstitutionality for a prescribed time to allow parliament to change the law by either making it achieve its purpose without being unconstitutional or by removing the unconstitutional provisions.” 46. We further appreciate that the Constitution should be given a purposive and liberal interpretation, while promoting the dreams and expectations of the people of Kenya (see Advisory Opinion Application No. 2 of 2012, In the Matter of the Principle Gender Presentation in the National Assembly and the Senate [2012] eKLR). Lastly, it is the principle that the provisions of the Constitution be read as an integrated whole, without any one particular provision destroying the other but each sustaining the other (see Tinyefuza -vs- Attorney General of Uganda, Constitutional Petition No. 1 of 1987 (1997 UGCC 3). 47. The presumption of constitutionality is a legal principle where Page 53 courts assume laws passed by the legislature are constitutional, Page 54 placing the burden of proof on the challenger to show a clear constitutional violation. The doctrine reflects judicial respect for the legislative branch, recognizes its fact-finding superiority, and upholds separation of powers, requiring strong evidence to overturn a statute, though it is not absolute, especially concerning fundamental rights (Senate & 3 others -vs- The Speaker of the National Assembly & 10 others Petition No. 19 (E027 of 2021). 48. Bearing in mind all those guiding principles, we shall proceed to consider and determine the issues that the appeal has raised. (A) Whether the High Court erred in holding that the Petition was not rendered moot by the 2022 and 2023 amendments. 49. In constitutional litigation, the doctrine of mootness focuses on whether a live controversy existed at the time of adjudication and whether the court’s decision remained practically significant, rather than solely on the existence of legislative amendments. In Dande & 3 Others -vs- Inspector General, National Police Service & 5 Others (Petition 6(E007) 4 (E005) & (E010) of 2022 (consolidated) [2023] KESC 40 (KLR), the Supreme Court stated that courts should avoid deciding matters that are abstract, academic or hypothetical. It urged courts not to act in vain in deciding matters which had been overtaken by events. In Institute of Social Accountability case, the Supreme Court considered the effect of legislature during the pendency of proceedings and decisions related thereto and stated: Page 55 “(52) The emerging general principal flowing from the above decisions is that where a new statute is enacted that unequivocally and clearly addresses the concerns that are at the heart of a dispute then such a dispute is moot.” Page 56 50. From the record, the CDF Act, 2013 was challenged in the High Court by persons and organisations who were concerned with public finance accountability and constitutional governance. They questioned the constitutionality of the statutory framework establishing and operationalizing the Fund. The High Court declared the Act unconstitutional. Aggrieved, the National Assembly and the CDF Board appealed to the Court of Appeal. During the pendency of the appeal, Parliament enacted the NGCDF Act, 2015, prompting objections grounded on mootness. The Court of Appeal partially allowed the appeal, holding that only specific provisions of CDF Act, 2013 violated the doctrine of separation of powers and overturned the declaration invalidating the entire Act. The appellants thereafter appealed to the Supreme Court, while the National Assembly filed a cross- appeal. 51. The issue of mootness came up. The Supreme Court declared the entire CDF Act, 2013 to be unconstitutional. On the question of mootness, it held that the matter is moot only where it no longer presents a live controversy capable of resolution by the court. The court found that the enactment of the NGCDF Act, 2015 did not conclusively settle the constitutional issues raised, as general contested features of the CDF Act, 2013 had been re-enacted. Consequently, the appeal was not moot. This was the decision in Institute of Social Accountability case. 52. In the instant appeal, the appellants’ case proceeds on the Page 57 basis that the 2022 and 2023 amendments to the NGCDF Act, 2015 fundamentally altered or repealed the provisions impugned Page 58 before the High Court, thereby extinguishing the substratum of the petition. They emphasize the breath of the amendments and submit that the High Court was invited to pronounce itself on a statute that had materially ceased to exist in its original form. 53. The 1st and 2nd respondents, on the other hand, contend that the doctrine of mootness does not operate mechanically upon amendment or appeal. Their submissions emphasize that constitutional adjudication is concerned with substance rather than form, and that the amendments made did not cure the constitutional infirmities outlined in the petition, but merely re- expressed them. They refer to prior litigation in which the courts declined to establish mootness notwithstanding legislative amendments or substitutions particularly where the constitutional questions went to the heart of issues of devolution, separation of powers and principles of public finance. 54. Those competing positions raise the question whether the High Court was faced with a resolved controversy or whether, despite the amendments, a live constitutional dispute persisted that required adjudication in the public interest. The 1st and 2nd respondents urge that, while the NGCDF Act, 2015 was substantially amended in 2022 and 2023, mootness does not apply automatically. 55. The High Court noted that, following the 2022 and 2023 amendments, several sections of the Act were deleted and repealed. The Court proceeded as follows:- “Sections 15(4), 19, 43(2)(e) and 53 were Page 59 repealed or substituted by the 2023 Act. The challenges to these sections in the petition is thus moot. Page 60 69. We note that the original section 19 which was challenged in the petition was repealed and substituted therefor with new sections 19 and 19A. We are fortified in our decision because the petition was never amended. 70. We, however, find that there is still a raging dispute calling for adjudication on the remainder of the Act. For instance, the amendments to section 15(1)(e) and 2 empower the Public Service Commission to make recommendations to the Cabinet Secretary on the persons to be appointed as members of the National Government Constituencies Development Fund Board established under section 14 of the Act. However, the appellant is still subject to approval by the National Assembly. 71….. 72. Section 43(6) is challenged because of the temporal nature of the Constituency Committee which is tied to either the general election or a by election, which is pointer to the control of the National Assembly. Although the 2023 amendments to the section deleted the 2022 amendment by removing the words “by election”, the Committee is still tried to the life of Parliament. 73.Section 43(6), 8 and 9 of the impugned Act are being challenged because of the temporal nature of the life of the office of the Fund Account manager tied to the term of the member of the National Assembly. These subsections were never amended hence the controversy still remains. In addition, subsection 9 still refers to a by-election which word was removed from subsection 6. 74. In light of the foregoing, we find that the 2022 and 2023 amendments to the 2015 Act do not negate the substitution of the entire petition.” Page 61 56. We have examined the pleadings and the statutory framework as it existed at the time of the High Court’s determination. We are Page 62 satisfied that several provisions continued to raise justiciable questions regarding the constitutional structure of the Fund and its various institutional arrangements. These questions required determination. The petition was, therefore, not wholly spent. We, therefore, uphold the High Court’s finding that the petition was not wholly moot and that the court retained jurisdiction to address the remaining live issues. (B) Whether the NGCDF Act, 2015 as amended in 2022 and 2023, violates the principles, of devolution and offends the division of functions between the national and county governments. 57. The principal complaint under this ground of appeal is that the High Court concluded that the NGCDF Act, 2015 undermines the constitutional architecture of devolution. the High Court reasoned that by designating the constituency as a service delivery unit, the Act created multiple channels of funding, leading to duplication of projects, and that this fostered wastage of public resources and generate institutional confusion. At paragraph 92 of the decision the learned Judges found that:- “All these undermine the principle of devolution and the architecture of the Constitution on the two levels of government, separation of powers and the primary oversight role of Parliament.” 58. In reaching this decision, the learned Judges were substantially influenced by the Supreme Court’s decision in Institute of Socia l Accountability case which held that the CDF Act, 2013, especially by its sections 3 and 22(1), had Page 63 a wide reach that will Page 64 inevitably involve the Fund in the implementation of functions constitutionally assigned to county governments. Further that, the Fund creates the prospect of duplication of funding for the same projects leading to wastage of scarce public resources. 59. In prosecuting the appeal, the appellants contended that the High Court failed to appreciate that the Act, by its express design, is confined strictly to the extensive functional domain of the national government, a position that had been confirmed by the Supreme Court in Senate & 3 Others - vs- Speaker of the National Assembly & 10 others (supra). Reliance was placed on Article 6(3) of the Constitution which requires a national State organ to ensure reasonable access to its services in all parts of the Republic, so far as it is appropriate, having regard to the nature of the service. It was submitted that this Article supports lawful decentralization of national functions without infringing on devolution. 60. This position was reinforced by the 4th and 6th respondents who submitted that, Article 6(3) expressly contemplates that the national government may decentralize its services through appropriate administration structures, without violating the principles and objects of devolution or the doctrine of separation of powers. The 4th and 6th respondents further submitted that, the National Treasury and Economic Planning Ministry, as part of implementing purely national government functions, may decentralize such functions to any level of its administrative units, including constituencies and that such decentralization was consistent with the Article. Page 65 61. The 4th and 6th respondents argued that, as long as the decentralisation was limited to the performance of national government functions, and financing is drawn from the national government share of equitable revenue under Articles 202 and 208, the national government was constitutionally entitled to implement projects through any suitable administrative unit. Accordingly, legislation such as the NGCDF Act, 2015 or the National Government Affirmative Action Fund can facilitate a decentralised national development programme while respecting functional boundaries between the national and county governments. 62. On behalf of the 2nd appellant, it was submitted that the High Court erred in relying heavily on the Supreme Court’s decision of 8th August 2022 on repealed CAF Act, 2013. It was argued that, unlike the 2013 Act, through sections 3(c) and (k) and 24, the NGCDF Act, 2015 had introduced explicit safeguards restricting all Fund projects to exclusive national government functions. These safeguards were decided precisely to address the deficiencies identified by the Supreme Court in regard to the 2013 Act. Further, the 2nd appellant contended that section 3 of the National Government Co-ordination Act mandated the national government to establish channels for decentralizing its services. In compliance, structures have been put in place at the constituency level to facilitate the lawful delivery of national government services. The 2nd appellant further submitted that, unlike the CDF Act, 2013 which lacked clarity on the scope of funded projects, the NGCDF Act, Page 66 2015 does not establish a “third tier” or parallel tier” of government. Rather, the Act provides a platform for the Page 67 national government to implement its programmes and policies, and deliver services to its citizens using the Fund. It was the submission of the 2nd appellant that the High Court failed to distinguish between lawful decentralization of national government services and the creation of a parallel level of government. 63. The 1st and 2nd respondents, however, argued that the NGCDF Act, 2015 was unconstitutional for effectively creating a “third tier” government at the constituency level, and that no “third tier” organ may operate concurrently with the two levels of government. 64. The 1st and 2nd respondents, relying on Institute for Social Accountability case, reiterated that constituencies, as conceptualized under the Constitution, are tried exclusively to political representation. The respondents further submitted that the interpretation by the Supreme Court in the Institute for Social Accountability case had not been overturned. Accordingly, under the Constitution, a constituency is permanently tied to a member of the National Assembly whose role is to legislate. They contended that, a constituency cannot serve as a unit for service delivery. 65. The 1st and 2nd respondents argued that the system of cooperative governance imposes obligations on both levels of government to respect the constitutional statutes of the institutions of the other level and to respect the functional and institutional integrity of the other level. It was their argument that these obligations underpin the “non- Page 68 encroachment Page 69 principle”, which precludes either level from assuming functions assigned to the other. 66. In the proceedings before the High Court, the 1st and 2nd respondents’ central issue at paragraphs 61 and 62 of the petition was that, by adopting the constituency as an operational unit for the implementation of projects, the NGCDF Act, 2015 effectively created a parallel governance structure that mimics a level of government. That, this amounted to the creation of a “third tier” of government which is unknown to the Constitution. This, they argued, violated the basic structure of the Constitution. 67. The learned Judges addressed this argument at paragraphs 96 and 97 of their judgment. Relying on the decision of the Supreme Court in Attorney General & 2 Others -vs- Ndii & 179 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR), the learned Judges correctly held that the basis structure doctrine as developed in other jurisdictions, is not applicable in Kenya. On that footing, the learned Judges rejected the invitation to invalidate the NGCDF Act, 2015 on the basis of an alleged violation of the basis structure doctrine. Having so held, however, the learned Judges nonetheless proceeded to find that the creation of a constituency as service delivery unit undermines devolution and the constitutional design of governance. 68. We find an internal inconsistency in the approach adopted by the learned Judges on this issue. From our review of the pleadings, it is plainly evident that the challenge mounted Page 70 by Page 71 the 1st and 2nd respondents of the constituency as a service delivery unit was inextricably anchored on the basic structure argument. The pleadings show that the 1st and 2nd respondents claimed that the use of the constituency as a service delivery unit created an impermissible third level of government which offended the basic structure of the Constitution. Once the court found, correctly in our view, that the basic structure doctrine is not applicable in Kenya, the very foundation of that particular challenge collapsed. 69. Be that as it may, even on the merits, the conclusion reached by the court cannot be sustained when the NGCDF Act, 2015 is examined in its proper constitutional and statutory context. 70. The NGCDF Act, 2015 describes the Fund as the National Government Constituencies Development Fund. That classification is deliberate and constitutionally significant. It underscores that the Fund is an instrument of the national government. 71. The Act defines a “constituency” as one of the constituencies into which Kenya is divided under Article 89 of the Constitution. The use of the constituency as the operative unit is thus neither novel nor extraneous to the constitutional order; it is a unit firmly embedded within the national governance framework. 72. In our view, the constitutional justification for this design lies in Article 6 of the Constitution, which entrenches the principle of subsidiarity. Article 6(3) of the Constitution Page 72 obligates the national government to ensure reasonable access Page 73 to its services in all parts of the Republic. Subsidiarity does not require the national government to abdicate its functions to county governments. The principle contemplates that each level of government discharges its functions at the lowest effective level. It is thus foreseeable, and constitutionally sanctioned, that the national government may decentralize its own structure sand mechanisms in order to perform the functions assigned to it by the Constitution. 73. Under the Constitution, both levels of government are permitted, and in appropriate cases, required to decentralize. County governments have done so pursuant to section 48 of County Governments Act and the national government has decentralized its service delivery architecture through the National Government Coordination Act. Under section 14(1A) of the National Government Coordination Act, all the constituencies established under Article 89 of the Constitution are recognized and established as a national government service delivery unit. The effect of this is to acknowledge the constituency as a legitimate platform for implementation of national government functions. Notably, the constitutionality of section 14 of the National Government Coordination Act has not been challenged, nor was it impugned before the High court. 74. The Public Finance Management Act (Cap. 412 A) reinforces this conclusion. Section 24(2) if the Act authorizes the establishment of National Public Funds by Page 74 Cabinet Secretary for Finance, while section 24(5) requires the designation of a person to administer every such Fund. Article 260 of the Page 75 Constitution defines a “person” broadly to include bodies of persons, whether incorporated or unincorporated. The NGCDF Board therefore falls squally within this definition. 75. The conclusion that the constituency functions as a national government service delivery unit is further fortified by the text and scheme of section 14 of the NGCDF Act, 2015 itself. The provision establishes the administrative framework at the constituency level and delineates the offices and structures through which the Fund is operationalized. When read purposely and in harmony with the National Government Coordination Act, section 14 of the NGCDF Act, 2015 leaves no doubt that the constituency is conceived, not as a third level of government, but as a decentralized platform for the execution of national government functions. 76. It is important to point out that the NGCDF Act, 2015 came into force on 19th February 2016. The Fund has therefore been in operation for a considerable period. We did not find in the record any evidence placed before the High Court to demonstrate that, during the period of its operation there has arisen any dispute between the national government and the county governments on account of duplication of funding, confusion in project implementation or lack of clarity to which level of government is responsible for particular projects. The Council of Governors (7th respondent) and the Senate (3rd respondent) were parties to the dispute. Neither of them raised those complaints. Consequently, we find that the conclusions reached by the Page 76 High Court on duplication, double financing, wastage of public resources and compromised accountability Page 77 were not supported by any factual material on record. These findings were premised on apprehension rather than demonstrated infringement. It is settled that courts do not invalidate legislation on the basis of hypothetical or speculative harm (Katiba Institute & Another -vs- Attorney General & Another [2017] eKLR). 77. Further, even if a dispute were to arise between the two levels of government in the course of implementation, the existing legal framework provides clear mechanisms for their resolution. For instance, section 19 of the National Government Coordination Act provides for collaboration and dispute resolution between the national government and the county government. The dispute will be resolved though mediation. The provision gives effect to the constitutional requirement that intergovernmental relatives be conducted on the basis of cooperation and consultation, rather than conflict. In addition, the NGCDF Act 2015 contains internal safeguards. Section 31 of the Act vests in NGCDF Board the mandate to scrutinize and approve proposed projects. Such approval is conditional upon the project being consistent with Act and the Constitution. In particular, the project must fall within the functions of the national government as set out in the Fourth Schedule of the Constitution. 78. Article 184 of the Constitution obliges the national and county governments to cooperate in the exercise of their functions and to make every reasonable effort to settle disputes amicably. Article 189(3) requires that inter- Page 78 governmental Page 79 disputes be resolved through alternative dispute resolution mechanism. 79. To operationalize these constitutional provisions, parliament enacted the Intergovernmental Relations Act (Cap. 265F). Section 7 of the Act establishes the National and County Governments Coordinating Summit, whose functions include monitoring the implementation of national and county development plans and coordinating and harmonizing the development of national and county policies at the county level. Section 54 of the County Governments Act (Cap. 265) establishes County Intergovernmental Forums chaired by Governors. The functions of these forums include coordination of inter- governmental functions pursuant to Article 186(1) and the Fourth Schedule to the Constitution. 80. Then, section 187(1) of the Public Finance Management Act (Cap. 412A) establishes Intergovernmental Budget and Economic Council, comprising of representatives of both levels of government. The Council provides a forum for consultation and cooperation on matters relating to budgeting, economy, financial management and integrated development at both the national and county levels. 81. In light of all the above, the claim that the NGCDF Act, 2015 interferes with the county government planning or results in duplication or wastage of resources cannot be sustained. The Act has express limitations on the scope of the Fund and is supported by institutional mechanisms Page 80 designed to address any overlap or dispute. We accordingly find that the NGCDF Page 81 Act, 2015 does not interfere with the functions of county governments and does not offend the principle of devolution. 82. In any event, this Court had the opportunity to scrutinize the Act in the Speaker of the Nationa l Assembly & Another -vs- Senate & 12 Others (Civil Appeal No. E084 of 2021) [2021] KECA 282 (KLR). The Court was confronted with the contention that the Act impermissibly establishes a “third level of government”. This Court rejected that argument in unequivocal terms, holding that – “……upon examining the pleadings, it seems that the substance of the complaint is that “… it sets up a third level of government that is not contemplated in the Constitution…” No explanation is proffered as to what is meant by a third government or its nature or how the Act is purported to have set it up. The 1st to 4th respondents have not advanced any materials to show why the national government was prohibited from setting up a fund of this nature.” 83. We further recall that on 21st March 2025 the Supreme Court delivered its judgment in Senate & 3 Others -vs- Speaker of the National Assembly & 10 Others, Petition No. 19 (E027) of 2011 [2025] KESC 11 (KLR) in a matter where it was considering the constitutionality of NGCDF Act, 2015. It held as follows: “129. On the National Government Constituencies Development Fund Act, 2015 the Court of Appeal held that it was not demonstrated how and in what way (s) the said Act impedes or affects County Government functions. As such, the Court held that there was no need for the involvement of the Senate in the enactment of the statute. We have Page 82 ourselves reviewed Page 83 the provisions of the Act as enacted and of significance is section 24 of the Act that provides that: “A project under this Act shall only be in respect of works and services falling within the exclusive functions of the national government as provided in the Constitution.” The other provisions, reinforce this particular one, by restricting the operations of the Fund to the exclusive functions of the National Government. We therefore agree with the finding of the Court of Appeal that this statute did not affect the functions ….of counties.”” (C) Whether the process of enactment of the NGCDF Act, 2015 was unlawful for failure to involve the Senate. 84. This issue can be easily determined by reference to the Supreme Court decision in the Senate & 3 Others -vs- Speaker of the Nationa l Assembly & 10 Others (supra), that categorically found that, because section 24 of the Act restricts the operations of the Fund to the exclusive functions of the national government, the Act did not affect the functions and powers of counties. The basis of this decision, we find that the involvement of the Senate, was not required during the enactment of the NGCDF Act, 2015. (D) Whether the NGCDF Act, 2015 violates the doctrine of separation of Powers. 85. We now turn to the question whether the NGCDF Act, 2015 violates the doctrine of separation of powers. The High Court considered the Act, and at paragraph 128 of its decision stated as follows:- Page 84 “Whereas the role of the National Assembly in the above two scenarios under sections 15(1)(e) Page 85 and 43(4) and (5) can safely be said to be oversight role, the catch is in section 43(9) which is clear that the Fund Account Manager who is the holder of the purse to the Fund, seconded by the Board to the Constituency shall be the custodian of all records and equipment of the Constituency during the term of Parliament and during transition occasioned by general election or a by election. What this clearly means is that the term of the Fund Account Manager is tied to the term of Parliament which is five years or in the case of a by election. All this implies that the Member of the National Assembly remains in the shadows of the Fund, controlling its operations, however remotely, at the constituency level.” 86. Later in the judgment, at paragraph 141, the learned Judges stated as follows:- “There is nothing in the above Article that grants the National Assembly the power to implement projects in the constituency as a service delivery unit. The mandate of members of the National Assembly is to represent, legislate and oversight the national revenue and its expenditure. Accordingly, by creating a Fund that is administered by the Constituency, which is a unit of political representation for legislative and oversight roles, however far removed the Member of the National Assembly may be, in the management and administration of the Fund, runs afoul the doctrine of separation of powers.” 87. The learned Judges’ concern was in regard to sections 15(1) (e), 43(4) and (5) of the Act which require the approval of the National Assembly in respect of certain appointments to the Board and to the Constituency Committees, and section 43(9) which provides that the Fund Account Manager seconded to the Board shall be the custodian of records and Page 86 equipment of the constituency during the term of Parliament and transitional periods. From these provisions, the learned Judges inferred a Page 87 perceived influence by members of the National Assembly over the operations of the Fund at the Constituency level. 88. The appellants submitted that the doctrine of separation of powers is not expressly entrenched in the Constitution as a free standing provision capable of direct violation; that the doctrine is a structural principle that informed the architecture of the Constitution. They pointed out that the only time that the Constitution expressly referred to separation of powers was in Articles 174(1), 175(a) and 185(3), and that this was in reference to devolved governments. They argued that the petition neither pleaded nor demonstrated the violation of any specific provision of the Constitution. To them, the conclusion of unconstitutionality was arrived at without first identifying the precise constitutional text alleged to have been infringed. 89. It was the appellant’s further case that the Constitution deliberately permits functional overlaps among the three arms of government. They cited, by way of illustration, the Executive’s participation in legislative processes through presidential assent, and through delegated legislation; Parliament’s exercise of quasi- judicial powers under Article 125, including impeachment proceedings and the Judiciary exercise of administrative and budgetary autonomy through the Judiciary Fund, and its development of Judge-made laws. 90. Relying on comparative and local jurisprudence, including Murang’a County Public Service Board -vs- Grace N. Makori & 178 Others [2015] eKLR and Bhim Singh -vs- Union of India [2010] INSC 358, the appellants argued Page 88 that the Page 89 Constitution does not prescribe a rigid or water tight separation of powers, but rather a functional system of checks and balances designed to secure accountability. 91. The 2nd appellant emphasized that the Fund was a national government fund administered through clearly defined statutory structures; and that it was domiciled in the State Department under the National Treasury, and is administered by the NGCDF Board established under section 14 of the Act. It was submitted that, the Act vests the Board with responsibility for project approval, fund disbursement and overall management under section 16, while Constituency Committees established under section 43 are limited to identifying projects through public participation and monitoring implementation by Project Management Committees. At no point, it was submitted, do members of the National Assembly participate in project implementation or Fund management. 92. In response, the 1st and 2nd respondents, while supporting the judgment, submitted that under Article 95 of the Constitution, the role of the members of the National Assembly is confined to representation, legislation and oversight; that, by establishing constituencies as service delivery units and embedding parliamentary approval mechanisms in the governance of the Fund, the Act had impermissibly entangled legislators in executive functions, which was contrary to the doctrine of separation of powers. 93. The Kenya Constitution establishes the separation of powers among the three independent centers – the Executive, the Page 90 Legislature and the Judiciary. This has been done to prevent the concentration and abuse of powers, fostering checks and balances at both the national and county governments, to promote the rule of law, to protect human rights and to ensure good governance. The normative duty of the Constitution is to ensure sovereign power is exercised within constitutional bounds and for the benefit of the people. 94. We consider that, in reaching the decision that it did, the High Court placed undue reliance on the Supreme Court’s decision in Institute of Social Accountability & Another -vs- National Assembly & 3 Others (supra) which concerned the invalidation of the CDF Act, 2013. We have shown in the foregoing that the governance architecture of the NGCDF Act, 2015 is materially different, and the High Court was required to undertake an independent analysis of the Act. The court was required to situate the doctrine of separation of powers within Kenya’s Constitution context, consider whether the impugned provisions, either by design or in their practical effect, permit legislators to exercise executive authority, and whether such an arrangement threatened the values of accountability, good governance, and the institutional balance underlying the Constitution. 95. The Constitution deliberately creates institutions, and their interdependence, through a system of checks and balances. For instance, Presidential appointments to key state offices require parliamentary approval. These include appointments under Article 132, 152 and 166. Parliament exercises oversight through impeachment and removal mechanisms Page 91 under Articles 145 and 152, and through control of Public Finance under Page 92 Articles 221 and 224. The President participates in the legislative process through assent and reservations under Article 115. The Judiciary exercises constitutional review over legislative and executive action under Article 165(3) (d). These provisions demonstrate that the Constitution does not envisage separation of arms and organs into impermeable silos but rather structured interaction anchored in accountability. 96. The Supreme Court authoritatively articulated this position in In the Matter of the Interim Independent Electoral Commission, Constitutional Application No. 2 of 2011 by stating the following:- “While bearing in mind that the various Commissions and independent offices are required to function free of subjection to “direction or control by any person or authority”, we hold that this expression is to be accorded its ordinary and natural meaning; and it means that the Commissions and independent offices, in carrying out their functions, are not to take orders or instructions from organs or persons outside their ambit. These Commissions or independent offices must, however, operate within the terms of the Constitution and the law: the “independence clause” does not accord them carte blanche to act or conduct themselves on whim; their independence is, by design, configured to the execution of their mandate, and performance of their functions as prescribed in the Constitution and the law. For due operation in the matrix, “independence” does not mean “detachment”, “isolation” or “disengagement” from other players in public governance. Indeed, for practical purposes, an independent Commission will often find it necessary to co- Page 93 ordinate and harmonize its activities with those of other institutions of government, or other Commissions, so as to maximize results, in the public interest. Constant Page 94 consultation and co-ordination with other organs of government, and with civil society as may be necessary, will ensure a seamless, and an efficient and effective rendering of service to the people in whose name the Constitution has instituted the safeguards in question...” 97. The result is that none of the government organs, institutions and commissions functions in splendid isolation or tortured loneliness. 98. The caution against doctrinal rigidity was also earlier on expressed by Cardozo, J. in his dissenting opinion in Panama Refining Company -vs- Ryan [1934] 293 US 388, 440 when he warned that separation of powers – “….is not a doctrinaire concept to be made use of with pedantic vigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Government which cannot foresee today the developments of tomorrow in their nearly infinite variety.” 99. Section 15 of the NGCDF Act, 2015 provides as follows:- (1)The Fund shall be administered by a Board of Directors which shall consist of— (a)the Principal secretary in the Ministry for the time being responsible for matters relating to national economic policy and planning or a designated alternate, not being below the level of Director of Planning; (b) the Principal Secretary in the Ministry for the time being responsible for matters relating to finance or a designated alternate not being below the level of Deputy Director of Budget; (c)the Attorney-General or a designated alternate not being below the level of Senior State Counsel; Page 95 (d) the principal secretary in the Ministry responsible for matters relating to education or a designated alternate not being below the level of Director; (e) seven other persons, three of whom shall be of the opposite gender and at least one shall be a person with disability, qualified in matters relating to finance, accounting, engineering, economics, community development, public affairs, project management, education, security or law appointed by the Cabinet Secretary in accordance with the recommendations of the Public Service Commission and with the approval of the National Assembly; and (f)the chief executive officer who shall be an ex officio member without a right to vote. (2) In nominating or approving the appointment of a person as a member of the Board under subsection (1), the Cabinet Secretary, the Public Service Commission and the National Assembly shall take into account gender equity and the regional diversities of the people of Kenya. (3) The Cabinet Secretary shall appoint the chairperson of the Board from amongst the seven persons appointed in accordance with paragraph (e) of subsection (1). (4) Deleted by Act No. 21 of 2023, s. 4.” 100. It is clear under section 15(1)(e) of the Act that, the “seven other persons” who shall form the Board shall be appointed by the Cabinet Secretary with the approval of the National Assembly. 101. This is not the first piece of legislation that has subjected an appointment to the National Assembly for approval. Parliament is involved in the approval process of the Chief Justice, Cabinet Secretaries, High Commissioners and Page 96 Ambassadors, Public Service Commission, Independent Electoral and Boundaries Page 97 Commission, and so on. In respect of section 15(1)(e), one can see why the National Assembly approval is required. The persons nominated should include persons of opposite gender, a person of disability, person qualified in matters relating to finance, accounting, engineering, economics, community development, public officers, project management, education, security or law. It is for the National Assembly, while approving, to ascertain that the persons nominated by the Cabinet Secretary fit the requirements of the section. We find that the learned Judges erred when they read more into this section. The section does not in any way violate the doctrine of separation of powers. 102. Section 43 of the NGCDF Act, 2015 states as follows:- “(1) There is established a National Government Constituency Development Fund Committee for every constituency. (2) Each Constituency Committee shall comprise of — (a)the national government official responsible for co-ordination of national government functions; (b)three men each nominated in accordance with subsection (3), one of whom shall be a youth at the date of appointment; (c)three women nominated in accordance with subsection (3), one of whom shall be a youth at the date of appointment; (d)one persons with disability nominated by a registered group representing persons with disabilities in the constituency in accordance with subsection (3); (e) deleted by Act No. 21 of 2023, s. 9; (f) the officer of the Board seconded to the Constituency Committee by the Board who shall be an ex officio member without a vote. (g) one member co-opted by the Board in Page 98 accordance with Regulations made by the Board. Page 99 (3) The seven persons referred to in subsection (2)(b), (c), (d) and (e) shall be selected in such manner and shall have such qualifications as the Board may, by Regulations, prescribe. (4) The names of the persons selected under subsection (3) shall be submitted by the Board to the National Assembly for approval before appointment and gazettement by the Board. (5) The Regulations made under subsection (3) shall be submitted to the National Assembly for approval before publication by the Board. (6) The first meeting of the Constituency Committee shall be convened by the officer of the Board seconded to the constituency within one hundred and twenty days from the date of the holding of a general election as contemplated in Article 101(1) of the Constitution. (7) The quorum of the Constituency Committee shall be one half of the total membership. (8) The term of office of the members of the Constituency Committee shall be two years and shall be renewable but shall expire upon the appointment of a new Constituency Committee in the manner provided for in the Act, or as may be approved by the Board. (9) The Fund account manager seconded by the Board to the constituency shall be the custodian of all records and equipment of the constituency during the term of Parliament and during transitions occasioned by general elections or a by- election. (10) Whenever a vacancy occurs in the Constituency Committee by reason of resignation, incapacitation or demise of a member the vacancy shall be filled from the same category of persons where the vacancy has occurred within a period of one hundred and twenty days. Page (11) The Constituency Committee shall meet at least six times in a year but the committee shall not hold more than twenty- four meetings in the same financial year, including sub-committee meetings. (12) Deleted by Act No. 24 of 2022, s. 16 (c). Page (13)A member of the Constituency Committee may be removed from office on any one or more of the following grounds— (a) lack of integrity; (b) gross misconduct; (c) embezzlement of public funds; (d) bringing the committee into disrepute through unbecoming personal public conduct; (e) promoting unethical practises; (f)causing disharmony within the committee; (g) physical or mental infirmity. (14) A decision to remove a member under subsection (13) shall be made through a resolution of at least five members of the Committee and the member sought to be removed shall be given a fair hearing before the resolution is made. (15) A vacancy arising as a result of the removal of a member under subsection (13) shall be filled in the manner set out in subsection (10) and minutes of the meeting shall indicate the fact of the removal or appointment of a member.” 103. Once again, there is an approval mechanism under section 43(3) and (4). The Board selects members of the Constituency Committee. A criteria of selection is given. The names are then submitted to the National Assembly for approval. To us, the approval is to ensure that the Board has complied with the criteria set out during the selection. This has nothing to do with an attack on separation of powers. The persons are selected by the Board. In 15(1)(e), the persons are nominated by the Cabinet Secretary. The approval process amounts to a check on the executive power by the National Assembly. This is in line with the separation of powers doctrine. Page 104. Section 43(9) of the Act provides that - “The Fund Account Manager seconded by the Board to the constituency shall be the custodian Page of all records and equipment of the constituency during the term of Parliament and during transitions occasioned by general elections or a by-election.” 105. We find that the link of the term of office of the Fund Account Manager to the term of Parliament is, on the face, problematic. If the National Assembly have argued that they exercise no control in the administration and management of the Fund at the Constituency level, then the term of the Fund Account Manager should outlive that of the Member of the National Assembly in the constituency. At perception level, therefore, we find that section tethers the functionality and independence of the Fund Account Manager. His position has to be delinked from the political tenure of the Member of National Assembly. The consequence is that, section 43(9) of the NGSDF Act, 2015, violates the doctrine of separation of powers between the executive and the legislature. The section is inconsistent with the Constitution, and we declare it unconstitutional. 106. However, in our considered view and given our previous findings, this single provision cannot justify invalidating the entire Act, as was done by the learned Judges. Under the principle of severability of unconstitutional provisions, it is settled that a court upon finding part of a statute unconstitutional, has to determine whether the invalid portion can be severed without defeating the purpose, structure or legislative intent of the statute. (See In the Matter of the Speaker of the Senate & Another (Advisory Opinion Reference No. 2 of 2013) [2013] KESC 7 (KLRS)). We find that, section 43(9) of the NGCDF Act, 2015, having Page been declared Page unconstitutional, can be severed from the Act without defeating the purpose, structure and the legislative intent of the Act. The remedy of striking down the entire Act was disproportionate and inconsistent with the principle of severability. Its removal does not impair the coherence or operation of the Act. (E) Whether the NGCDF Act, 2015 is in breach of the Principles of Public Finance. 107. Article 201 of the Constitution provides that: “The following principles shall guide all aspects of public finance in the Republic— (a) there shall be openness and accountability, including public participation in financial matters; (b) the public finance system shall promote an equitable society, and in particular— (i)the burden of taxation shall be shared fairly; (ii) revenue raised nationally shall be shared equitably among national and county governments; and (iii)expenditure shall promote the equitable development of the country, including by making special provision for marginalised groups and areas; (c)the burdens and benefits of the use of resources and public borrowing shall be shared equitably between present and future generations; (d) public money shall be used in a prudent and responsible way; and (e) financial management shall be responsible, and fiscal reporting shall be clear.” 108. Through the Public Finance Management Act, Parliament Page has provided for the effective management of public finances by the national and county governments; the oversight responsibility of parliament and county assemblies; the different responsibilities Page of government entities and other bodies; and for connected purposes. 109. At paragraph 164 of the impugned judgment, the learned Judges stated as follows:- “It is common ground that the Act provides for conceptualization, funding and implementation of projects within constituencies. As we have stated above, under section 54, no area is out of the reach of the Act and projects thereunder may extend to functions of both the national and county governments. We have already found that the Fund has the potential of creating confusion in the implementation of projects by the two levels of government and to duplicate funding for the same projects leading to wastage of scarce public resources and compromising accountability.” 110. The High Court eventually held that the NGCDF Act, 2015, as amended in 2022 and 2023, violated the constitutional principles of public finance. 111. The appellants submitted before us that the High Court was wrong in its reasoning and conclusion. It was argued that section 24 of the Act expressly confines the Act to – “works and services falling within the exclusive functions of the National Government.” Further that, in Senate & 3 Others -vs- Speaker of the National Assembly & 10 Others (supra), the Supreme Court had held that, by virtue of section 24, the Fund does not affect the functions and powers of counties. It was argued that the High Court had proceeded on the wrong basis that the Fund operates as a separate or parallel government Page structure, when, Page in fact, under section 4 of the Act, the Fund was an instrument of the national government, consisting of not less than 2.5% of the national government’s share of revenue under the annual Division of Revenue Act, and administered by the Board. According to the appellants, the Fund was therefore integrated into the national fiscal architecture and subject to the constitutional and statutory mechanisms ensuring prudent and responsible management of public resources. 112.The 2nd appellant argued that the learned Judges overlooked the provisions of Parts IV, V and VI of the Act, which establish comprehensive accountability framework. The provisions include ring-fencing of allocations, multi-layered approvals, external audits, procurement controls and mandatory reporting, all of which are hallmarks of sound public finance management under the Constitution and Public Finance Management Act. 113. The 2nd appellant submitted that the allocation and utilization process is carefully structured. According to the appellant, the Fund receives 2.5% of the national government’s share of the revenue. With support from the relevant committees of the National Assembly, the Board allocates funds to individual constituencies in accordance with the criteria under section 34 of the Act. Once funds are allocated to a specific project, they remain dedicated to that project unless reallocated by the Board’s approval. And that, all projects funded fall within the exclusive functions of the national government, and are community-based to ensure broad benefit within the locality. Page 114. The 1st and 2nd respondents, however, argued that the Act creates duplication and parallel structures and all these violate the principles of prudent and responsible resource management under Article 201. They were concerned that the establishment of multiple offices and communities, funded by public resources, duplicates functions already performed by existing national and county structures. 115. The 1st and 2nd respondents further submitted that the Fund is not adequately integrated into the national and county planning frameworks, resulting in potential advantage, double financing and mismanagement of public resources. 116. We have considered these rival submissions. The High Court’s reasoning and conclusions proceeded on the basis that the NGCDF Act, 2015 permits expenditure across both national and county functional domains, thereby blurring accountability and opening the door for double financing and wastage of public resources. This premise is not sustainable given the provisions of section 24 of the Act. The Supreme Court in Senate & 3 Others -vs- Speaker of the National Assembly & 10 Others case categorically held that section 24 is the controlling provisions of the NGCDF Act, 2015; and that all other provisions must be read in harmony with it. The Court stated as follows:- “The other provisions reinforce this particular one, by restricting the operations of the Fund to the exclusive functions of the National Government. We therefore agree with the finding of the Court of Appeal that this stature did not affect the functions and powers of counties.” Page 117. Bound by the decision of the Supreme Court under Article 163(7) of the Constitution, we reiterate that the Act does not trench upon, interfere with or duplicate the county government functions. This finding is dispositive of the complaint grounded on Article 201 of the Constitution. 118. We shall, however, endeavor to deal with the concern of the High Court as regards section 54 which it said places “no area out of reach.” With respect, the section has to be read together, and harmoniously, with section 24. The provision does not enlarge the functional scope of the Fund or authorize expenditure outside national government functions. The provision merely clarifies that the benefitting from a project funded under the Act does not preclude an area from benefiting from other lawful development programmes. 119. We point out that under section 24(4) of the Public Finance Management Act allows the Cabinet Secretary to establish a national government public fund with the approval of the National Assembly. Under Article 201 of the Constitution, there is provision for the prudent management of public finances, equitable sharing of revenue and accountability in financial management. Article 206(3) provides that withdrawal of funds from the consolidated Fund may only be made as authorized by law and with approval of the Controller of Budget. 120. Under the Public Finance Management Act, any impropriety in the use of public funds would attract sanctions. The design of the Fund is such that its allocation is drawn from the national government’s share of revenue after Page counties have received their Page equitable share. The allocation forms part of the national executive’s expenditure estimates, coordinated by the State Department for Economic Planning and approved by the National Assembly under the Appropriations Act. The NGCDF Act, 2015 provides multiple layers of fiscal oversight, including mandatory accounting and audit by the Auditor-general under section 11 which states that – “All funds received under this Act shall be audited and reported upon by the Auditor- General.” There is, finally, oversight by the National Assembly. 121. For the High Court to make a finding of unconstitutionality as it did, there had to be careful juxtaposition of the impugned provisions of the Act against the constitutional text and principles, and a clear demonstration of the manner in which the provisions infringed the Constitution. In the Supreme Court of the United States of America in U.S. -vs- Butler, 297 E.U. 1(1936), it was stated as follows: - “When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty; to lay the article of the Constitution which is invoked against the statute which is challenged and to decide whether the latter squares with the former. All the Court does, or can do, is to announce its considered judgment upon the question. The only power it has, if such may be called, is the power of judgment. The court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislature is in accordance with, or in contravention of, the provisions of the constitution.” Page 122. We do not find that there was sufficient engagement with the requisite textual and principles analysis before the High Court found that, in matters public finance, the NGCDF Act, 2015 was unconstitutional. In making this finding, we reiterate the principle that courts do not invalidate legislation on the basis of hypothetical and speculative harm (see Communications Commission of Kenya & 5 Others -vs- Roya l Media Services Ltd & 5 Others , Petitions Nos. 14, 14A 14B and 14C of 2014 (consolidated) [2014] KESC 53 (KLR)). (F) Reliefs:- (G) In conclusion, we determine that the High Court was wrong in invalidating the entire NGCDF Act, 2015. We set aside the judgment and decree issued on 20th September 2024. In its place, we find as follows:- (a) the petition before the High Court was not rendered moot by the 2022 and 2023 amendments of the NGCDF Act, 2015; (b) contrary to the finding by the High Court, the NGCDF Act, 2015 does not violate the principles and structure of devolution, or offend the division of functions between the national and county governments; (c) contrary to the finding by the High Court, except for its section 43(9), the NGCDF Act, 2015 does not violate the doctrine of separation of powers; (d) contrary to the finding by the High Court, the process of enactment of the NGCDF Act, 2015 did not require the involvement of the Senate; Page (e) contrary to the finding of the High Court, the NGCDF Act, 2015 was not inconsistent with the principles of public finance; (f) the remedy of striking down the entire NGCDF Act, 2015 was disproportionate and inconsistent with the principle of severability; and (g) section 43(9) of the NGCDF Act, 2015 was inconsistent with the principle of separation of powers, and therefore unconstitutional, and the part of the provision that provides that the term of the manager shall be cojoined with the term of Parliament and during transitions occasioned by general elections or a by-elections is hereby severed from the Act. 121. This being a public interest matter, each party shall bear own costs. Dated and delivered at Nairobi this 6th day of February 2026 D. K. MUSINGA, (PRESIDENT) …………………………………. JUDGE OF APPEAL F. TUIYOTT …………………………………. JUDGE OF APPEAL A. O. MUCHELULE …………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed Page DEPUTY REGISTRAR. Page

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