Decades-Long Debate on Constituency Funds Returns to Supreme Court

After more than two decades of legal and political debate, Kenya’s system of constituency-level development funding is again headed to the Supreme Court.

On Friday, February 6, 2026, lawyers for Wanjiru Gikonyo and Cornelius Oduor Opuot filed a formal notice of appeal against a recent Court of Appeal ruling that upheld most parts of the National Government Constituencies Development Fund (NG-CDF) Act, 2015, setting up a renewed constitutional test for the fund’s legality.

How CDF Started 

The idea of a constituency-based development fund in Kenya predates the 2010 Constitution by many years. The Constituencies Development Fund (CDF) was first established by Parliament under the CDF Act of 2003 to decentralise development resources and directly address poverty and regional inequalities at the grassroots level.

Under the 2003 Act, at least 2.5 per cent of national revenue was set aside each year for constituency projects; from classrooms and health facilities to water and access roads.

Following the adoption of the 2010 Constitution, which reshaped Kenya’s governance through devolution and clarified the separation of powers, Parliament enacted the NG-CDF Act, 2015. Although passed in 2015, the Act commenced on 19 February 2016, effectively rebranding CDF as NG-CDF and aiming to align the fund with Kenya’s new constitutional order by limiting direct involvement by Members of Parliament in implementation.

Supreme Court’s 2022 Ruling 

The constitutional validity of the original CDF law faced judicial scrutiny after petitions challenging its structure. In a landmark judgment delivered on 8 August 2022, the Supreme Court declared the CDF Act of 2013 unconstitutional, reaffirming earlier High Court findings that the law violated key constitutional principles including separation of powers, public finance, and the division of functions between levels of government.

The 2022 ruling underscored that MPs’ direct involvement in managing development projects conflicted with their legislative and oversight roles under the Constitution. It therefore dealt a significant blow to the old CDF architecture and shaped how Parliament devised the NG-CDF framework in 2015 and later amendments.

Challenge to NG-CDF and High Court Decision

Despite Parliament’s attempt to address constitutional concerns through the NG-CDF Act and its amendments in 2022 and 2023, the new law was itself challenged by public interest litigants.

In September 2024, the High Court declared the NG-CDF Act of 2015 (as amended in 2022 and 2023) unconstitutional on similar grounds, stating that it created an extra layer of government outside the constitutional framework and violated the doctrine of separation of powers. The court ordered that the fund and all its programmes cease operating by 30 June 2026, though it allowed ongoing projects time to be completed.

The High Court ruled that constituencies are electoral units and not service-delivery units, and that entrusting MPs with executive functions risked duplicating government activities and undermining devolution.

Appellate Court Reverses High Court Ruling

Parliament and the NG-CDF Board appealed that decision, arguing that NG-CDF is a legitimate national government service-delivery mechanism and that MPs do not directly manage projects under the reformed law.

On 6 February 2026, a three-judge bench of the Court of Appeal overturned the High Court’s ruling, holding that it had erred in striking down the entire NG-CDF Act. The appellate court found that the fund, as currently structured, operates within the constitutional framework and does not violate the basic principles of devolution or the division of functions between levels of government.

However, the Court of Appeal agreed with the High Court on one narrow issue: Section 43(9) of the Act, which tied the tenure of constituency fund managers to the term of Parliament, was declared unconstitutional and severed from the law, without invalidating the rest of the statute.

In response to the appellate judgment, Gikonyo and Opuot have now filed a notice of appeal to the Supreme Court, indicating they are aggrieved by the entirety of the appeal court’s decision and intend to seek a final constitutional determination. This will bring the matter full circle back to where the legal controversy first crystalised in 2022.