The High Court has invalidated the National Assembly’s move to exclude county governments from accessing allocations under the Road Maintenance Levy Fund (RMLF), citing the decision as unconstitutional and a threat to the principles of devolution enshrined in the Kenyan Constitution.
Delivering the ruling on June 5, 2025, Justice Lawrence Mugambi declared that the decision by the National Assembly violated key constitutional provisions, including Articles 6, 10, 94, 95, 118, 186, and Section 18 of Part I of the Fourth Schedule. The judgment strongly emphasized that excluding counties from RMLF undermines their ability to maintain roads under their jurisdiction and erodes the gains made under the devolved system of government.
According to the court, the classification of public roads into national, rural, and urban roads under Section 47 of the Kenya Roads Act, 2007, as read with its First Schedule, undermines the constitutional goals of devolution. Justice Mugambi stated that the legislation was unconstitutional as it disregards the role of county governments in the management of road infrastructure within their areas.
In a significant portion of the ruling, the court also found Section 6 of the Kenya Roads Board Act, 1999, to be unconstitutional for violating several provisions of the Constitution. The section was faulted for failing to recognize county governments as legitimate and necessary recipients of funds allocated for road maintenance through the RMLF.
Justice Mugambi declared that the National Assembly’s decision to exclude counties from benefiting from RMLF funds in the financial years 2024/2025 and 2025/2026 was null and void. He ruled that any budgetary allocation of funds from the RMLF that does not provide for counties’ inclusion as beneficiaries was not only illegal but also unenforceable.
The decision affects a total of Ksh10.552 billion in conditional grants that had been earmarked from the RMLF but denied to county governments. The ruling warned that such exclusion constitutes a direct threat to devolution and violates the equitable sharing of resources as outlined in the Constitution.
The case was brought before the court by Issa Elanyi Chemao and four others, who argued that the National Assembly acted unconstitutionally and unilaterally when it made the decision to exclude counties. The petitioners pointed out that the action lacked public participation and was executed without consulting the relevant stakeholders, thereby violating Articles 10 and 118, which guarantee inclusivity and public engagement in decision-making processes.
They also challenged the constitutionality of the Kenya Roads Act and the Kenya Roads Board Act, asserting that the two laws failed to align with the Fourth Schedule of the Constitution, which outlines the functions of national and county governments. They claimed that by centralizing road maintenance funding at the national level, the two statutes disrupted the balance intended by the devolved governance framework.
The court’s decision has been welcomed by proponents of devolution who argue that it reinforces the autonomy of county governments and their constitutional right to equitable access to national resources. It sets a precedent on how funds derived from national levies should be equitably distributed to ensure that all levels of government can perform their functions effectively.
This ruling underscores the judiciary’s role in safeguarding devolution and ensuring that Parliament operates within the confines of the Constitution, especially in matters concerning the distribution of public resources and governance.
