Introduction
1. The Petition dated 16th August 2024 is supported by the 5th petitioner’s Chief Executive Officer, Mary Mwiti’s affidavit in support of similar date.
2. The Petition assails the 1st respondent’s decision dated 28th September 2023 and 13th August 2024, that unilaterally excluded county governments from the Road Maintenance Levy Fund (RMLF) allocations for road maintenance in their respective counties. The Petitioners contend that the respondents action runs afoul the constitutional principles of devolution and equitable allocation of resources in respect of the county governments.
3. In addition, the Petition contests the constitutionality of the Kenya Roads Act and Kenya Roads Board Act on the basis that it does not conform to the Constitution, in particular, the Fourth Schedule of the Constitution.
4. The petitioners thus instituted this Petition against the respondents for violating various Constitutional provisions, namely, Articles 6 (1), 10, 118, 186 and also Section 18 of the Part 1 of the Fourth Schedule of the Constitution, and thus sought the following reliefs:
i. A declaration that given the territorial boundaries of county governments as provided in Article 6 (1) of the Constitution as read with the division of functions in Article 186 and the Fourth Schedule of the Constitution, the classification of public roads as national roads, rural and urban roads under Section 47 of the Kenya Roads Act, No. 2 of 2007-undermines the objectives of the devolution and the Fourth Schedule of Constitution.
ii. A declaration that Section 47 of the Kenya Roads Act, No. 2 of 2007 as read with the First Schedule of the Kenya Roads Act, No. 2 of 2007 is unconstitutional for violating Article 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
iii. A declaration that Section 6 of the Kenya Roads Board Act, 1999 is unconstitutional for violating the provisions of Articles 6, 10, 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
iv. A declaration that the decision of the National Assembly dated 28th September 2023 to unilaterally remove or fail to recognize County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024/2025 and 2025/2026 and another decision of 13th August 2024 to further remove County Governments as beneficiaries of Kshs. 10,522,211,853.00 conditional grants from funds derived from Road Maintenance Levy Fund ('RMLF' in the financial year 2024-2025-are illegal and unconstitutional for violating Article 10, 118, 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
v. An order of Certiorari be issued to quash the decision of the National Assembly of 28th September 2023 that unilaterally removed and/or failed to recognize County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024-2025 and another decision of 13th August 2024 to further remove County Governments as beneficiaries of Kshs. 10,522,211,853.00 conditional grants from funds derived from Road Maintenance Levy Fund ('RMLF') in the financial year 2024-2025.
vi. A mandatory order be issued directing the Kenya Roads Board to the Cabinet Secretary National Treasury and Economic Planning, Cabinet Secretary, Roads and Transport and Parliament to take appropriate budgetary measures to include County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024/2025, 2025/2026, and all subsequent years.
vii. A mandatory order be issued directing the Kenya Roads Board to disburse to the county governments the sum of Kshs. 10.522,221,853.00 due to them for the financial year 2024/2025.
viii. A mandatory order be issued directing the Kenya Roads Board, and Cabinet Secretary Roads and Transport, Attorney General, and Parliament to take appropriate measures to amend the Kenya Roads Board Act of 1999 to include County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') forthwith.
ix. An Order be issued directing the Cabinet Secretary of Roads and Transport and the Attorney General to take appropriate measures within 12 months to reclassify all roads in Kenya to accord to the constitutionally permissible framework, that is to say (national trunk roads and county roads).
x. An order be issued directing the Cabinet Secretary, Ministry of Roads and Transport, Attorney General, and Parliament to take appropriate measures within 12 months to amend the Kenya Roads Act No. 2 of 2007, Kenya Roads Board Act, No. 7 of 1999 and the Road Maintenance Levy Fund Act to align with the Constitution relating to the functions of County Governments in the Transport and Roads sector.
xi. A permanent injunction be issued against the respondents from removing county governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF').
xii. A permanent injunction be issued against Kenya Roads Board stopping it from funding Kenya Urban Roads Authority and Kenya Rural Roads Authority from the Road Maintenance Levy Fund ('RMLF').
xiii. Costs of the petition.
Petitioners’ Case
5. One of the fundamental features introduced with the promulgation of the Constitution is devolved government system that has the national and county governments. The petitioners allege this system has had its fair of challenges in implementation mostly because of the national government’s resistance to implement the devolved government system especially in distribution of monies that are required to finance devolved functions.
6. It is against this background that the Petitioner through the deponent, Mary Mwiti impugns the 1st respondent’s two major decisions. The two decisions that the Petitioners complain about are first, the decision on 28th September 2023 in which the 1st Respondent removed county governments as beneficiaries of funds of the RMLF and the second was the one made on 13th August 2024 that removed county governments from benefiting from Kshs. 10,522,211,853.00 conditional grant raised through RMLF in the financial year 2024/2025.
7. The Petitioners assert that the source of all this is Section 4 and 6 of the Kenya Roads Board Act which provides that the 2nd respondent is the one mandated to administer the RMLF.
8. This Fund established under Section 7 of the Road Maintenance Levy Fund Act comprises of taxes collected when one purchases fuel and is used to maintain Kenyan roads.
9. These funds under Section 20 of the Act are to be made out to the road agencies being Kenya National Highways Authority (KENHA), Kenya Rural Roads Authority (KeRRA), Kenya Urban Roads Authority (KURA) and the Kenya Wildlife Service (KWS).
10. It is averred that the Constitution under Section 18 (b) and (c) of the Fourth Schedule as read with Articles 186 (1) and 187 (2) provides that county governments are responsible for construction and maintenance of county roads. To implement this, it is asserted that the national government was required to amend the Kenya Roads Boards Act including the Kenya Roads Act to provide for the maintenance of county roads from the RMLF.
11. It is underscored that this was not done and thus the Kenya Roads Act is not in harmony with the Constitution. Moreover, the petitioners aver KeRRA and KURA continue to exist and perform the functions of the county governments even as county governments continue to push for the funds from the RMLF to maintain roads.
12. In this regard, she depones that in the 2013 to 2022 financial years, the county governments received funds from the RMLF in the form of either conditional grants or equitable shares. Moreover, it is stated that vide Legal Notice No. 2 of 2016 dated 22nd January 2016, the roads were classified into national trunk roads (Class A, B, C and S) and county roads (Class D, E, F, and G) making counties direct beneficiaries of the RMLF. Similarly, on 11th February 2023, a resolution was passed to the effect that County Governments should receive funds from the RMFL for the 2024/2025 financial year as conditional grants.
13. In a surprise move, a decision was made on 28th September 2023 that unilaterally removed county governments as beneficiaries of monies from the RMLF in the 2024/2025 and 2025/2026 financial year.
14. The petitioners contend that the 1st respondent’s impugned decision adversely affects the financing of the devolved government system and was made without public participation and arbitrarily and amounts to abuse of the 1st respondent’s powers under Article 94 and 95 of the Constitution.
15. The petitioners’ averred that they a challenge was made on the constitutionality of the impugned decision in Nairobi Constitutional Petition No. E456 of 2023: Issa Elanyi Chamao & 4 Others Versus the National Assembly of Kenya, & 8 Others wherein they were granted conservatory orders. The 1st respondent in a bid to extend an olive branch requested the petitioners that they settle the matter out of Court.
16. It is alleged that withdrawal of the petition was on the understanding that the funds that county governments were to lose through removal as beneficiaries of the RMLF would be compensated through allocations of conditional grant in the sum of Kshs 10.522,221,853 as broken down in the affidavit per County, through the County Governments Additional Allocations Bill, 2024. Amenable to the proposal, the petitioners proceeded to withdraw the petition on 8th February 2024.
17. It is alleged that going against its undertaking, the 1st respondent on 13th August 2024, ensued to remove the entire sum of Kshs 10,522,221,853 from the County Governments Additional Allocations Bill, 2024.In effect this denied all the County governments funds to maintain county roads whilst the roads agencies continue to receive the RMLF which as stressed goes against the county governments constitutional mandate to maintain county roads.
18. Accordingly, the petitioners bring this petition against the respondents challenging the constitutionality of the 1st respondent’s impugned decisions, the continued disbursement of the RMLF to the road agencies which is also argued to be discriminative and unconstitutional, equally whether the establishment of KURA and KeRRA are in line with the Constitution and whether the provisions of Section 6 of the Kenya Roads Board Act 1999, Section 47 of the Kenya Roads Act 2007 and Section 7 of the Road Maintenance Levy Fund Act, 1993 are constitutional to the extent that they do not recognize county governments.
1st Respondent’s Case
19. In response to the petitioners’ case, the 1st respondent filed grounds of opposition dated 28th August 2024 and a replying affidavit by the Clerk of the National Assembly, Samuel Njoroge sworn on 6th March 2025.
20. The grounds of opposition are on the basis that:
i. The petition herein is premature to the extent that it seeks to pre-empt the decision of Parliament on the County Government Additional Allocations Bill, Senate Bill No. 19 of 2024 in violation of the doctrine of ripeness.
ii. The application and petition herein are premised on material non-disclosure of the fact that the impugned decision of the National Assembly is a proposed amendment to the Bill which is still undergoing the legislative process.
iii. The petitioners are inviting the Court to usurp the exclusive legislative mandate of Parliament by asking the Court to amend the Bill that is before Parliament.
iv. The orders sought by the petitioners in the application are final orders which will prejudice the respondents if granted before Parliament concludes its deliberations on the Bill.
v. The application and petition herein violate the provisions of Articles 112 and 113 of the Constitution which provide the procedure for deliberation on an ordinary Bill concerning County Governments.
vi. The petition and application are based on the misguided assumption that Kshs. 10.552 Billion has already been set aside and allocated to County Governments from the Roads Maintenance Levy Fund.
vii. The petitioners are inviting the Court to appropriate Kshs. 10.552 Billion. The power to appropriate funds is a preserve of Parliament.
viii. The orders sought by the petitioners are pre-emptive in nature as the Bill is not guaranteed to pass in the Senate. If the Senate rejects the Bill as amended, the Bill shall be referred to mediation as contemplated under Article 113 of the Constitution.
ix. The petitioners’ are seeking to interfere with a legitimate legislative process in utter violation of the principle of separation of powers and has failed to provide any cogent reasons for the grant of the orders sought in the application and petition before this Court.
x. The petitioners failed to disclose that the impugned amount was arrived at during deliberations between the National Government executive and the Counties. Such an agreement is not binding on Parliament which has the power to determine revenue sharing between the two arms of government.
xi. The petitioners are inviting the Court to determine quantum of revenue allocation. This amounts to inviting the Court to determine a political question which requires determination by parliament when considering revenue allocation between the two levels of government.
xii. The petitioners are using the Courts to determine a revenue allocation process which is an entirely political process under Article 95, 96 203, 217, 218, 95 and 96 of the Constitution. If the Courts permit this, they will be opening the door for various sectors to leverage the judicial system to influence how revenue allocation, a responsibility of Parliament, is carried out. This would effectively be the Courts assuming the role of determining revenue allocation and appropriation.
xiii. The Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA) are national government agencies established under the Kenya Roads Act, 2007 and the agencies carry out their mandate within the scope of national government functions provided for in Part 1 of the Fourth Schedule of the Constitution.
21. Mr. Samuel Njoroge on behalf of the 1st Respondent swore that Article 202 of the Constitution provides that revenue raised nationally is to be shared equitably between the national and county governments. In addition, the county governments can get additional allocations either conditionally or unconditionally. Moreover, county governments are entitled to the equalization fund which is primarily used to cater for water, roads, health facilities and electricity. Consequently, he asserted that other than the monies provided for in law, county governments are not entitled to demand additional funds as there is no legal basis.
22. He stated that the RMLF is a special fund that is provided under the Roads Maintenance Levy Fund Act administered by the 2nd respondent and allocated to the designated road agencies.
23. For context, he stated that county governments first became beneficiaries of the RMLF as a conditional grant from the national government in the 2015/2016 Financial Year. This was based on the need to support counties maintain their local roads as contained in the County Allocation of Revenue Act. On this premise, the 2nd respondent allocated 15% of the RMLF for 6 years from that financial year until the 2020/2021 financial year.
24. He notes however that during consideration and approval of the Third Generation Revenue Sharing Formula as envisaged under Article 217 of the Constitution, the conditional grant drawn from RMLF was stopped because the maintenance of county roads was incorporated into the equitable revenue share.
25. Considering this, during the 2021/2022 and 2022/2023 financial years, county governments were not issued with any conditional grants from the RMLF and have not since. He informs that to do so, the national government dropped the conditional share from the RMLF and increased the county equitable share from Kshs. 316.5 billion to Kshs. 370 billion as can be gleaned from the Division of Revenue Act and the County Allocation of Revenue Act.
26. He states that this decision was guided by the need to ensure that no county would get less funds in the 2021/2022 financial year than what they had been allocated in the 2020/2021 financial year. The basis of this decision is stated to have stemmed from the fact that the new revenue sharing formula (the Third Generation Revenue Sharing Formula) was discovered to be disadvantageous to certain counties especially those with a large land area.
27. Therefore, to attain the 17% increase without interfering with other government operations, a decision was made to absorb the granted RMLF into the equitable revenue share as part of the Ksh.53.5 billion increase. Following this, each county government was required to inter alia utilize their allocated share to maintain their roads.
28. He avers thus that contrary to the petitioners’ allegations, county governments continue to receive adequate funds as allocated through the Division of Revenue Act and subsequently apportioned through the County Allocation of Revenue Act.
29. It is also noted that the national government despite its own financial constraints has consistently allocated to county governments, revenue exceeding the minimum 15% stipulated in Article 203(2) of the Constitution, including supplementary funds from the national government's revenue share under Article 202 of the Constitution, and financial support in the form of loans and grants from development partners.
30. Equally, the petitioners’ allegation of discrimination in allocation of the RMLF is opposed since this fund maintains all the roads across the country for the benefit of all people.
31. Turning to the County Government Additional Allocation Bill, 2024, he depones that the 2nd interested party published this Bill on 28th March 2024 and passed the same on 11th June 2024. Thereafter the Bill was submitted to the 1st respondent for consideration.
32. Essentially, the Bill sought to make provisions for transfer of the national government's share of revenue as well as monies from development partners to the county governments for the 2024/2025 financial year at the rate of Kshs. 61.9 Billion.
33. The Bill was committed to the 1st respondent’s Budget and Appropriations Committee. The Committee considered it and tabled its report on 13th August 2024. It was recommended that in light of budget rationalization, the proposed additional allocations to county governments be reduced from Kshs. 61.9 Billion to Kshs. 46.6 Billion for the 2024/2025 Financial Year. Additionally, the Report noted that the allocation for maintenance of county roads was Kshs. 10.522 Billion from RMLF for the 2024/2025 Financial Year despite the money having been incorporated into the equitable share for county governments. On this premise, the Committee declined the proposal as the allocation to county governments was noted as already forming part of the Division of Revenue Act, 2023.
34. In the end, the Committee recommended that the 1st respondent pass the Bill with the cited amendments. The 1st respondent considered the Bill on 13th and 14th August 2024 and passed it with the amendments on 14th August 2024.
35. Soon after on 20th August 2024, the Bill was transmitted to the 2nd interested party for consideration on the raised amendments. These amendments were considered and rejected on 23rd October 2024. As a result, a Mediation Committee was appointed by the Speakers of both Houses in line with Article 113 of the Constitution so as to develop a version of the Bill for consideration by both Houses.
36. He depones that during the legislative process, the petitioners instituted this suit and were granted conservatory orders on 19th August 2024.The orders suspended the 1st respondent’s impugned decision dated 13th August 2024; also suspended its decision to remove the Ksh.10, 522,211,853 as the conditional grant from the RMLF and froze the funds held by the 2nd respondent to the extent of Ksh.10,522,211,853.
37. This in effect stopped the Mediation Committee’s proceedings which are required to be complete within 30 days and curtailed the legislative process. It is stressed that this fact, was not disclosed by the petitioners in a bid to mislead to the Court. Issuance of the conservatory orders is said to be in breach of the doctrine of separation of powers and against public interest.
38. He avers as well that direction by this Court to the 1st respondent to enact legislation in this regard and classification of roads would be in violation of the doctrine of separation of powers. For these reasons, the petitioners’ assertions in this regard are termed as premature.
39. Additionally, it was argued that the petitioners had failed to demonstrate the prejudice that would be occasioned by KURA and KeRRA exercising their legislative mandate as envisaged in the Kenya Roads Act. Equally, it is underscored that the petitioners' allegations of unconstitutionality of Section 47 of the Kenya Roads Act, 2007 and Section 6 of the Kenya Roads Board Act is unfounded. Lastly, he asserts that the petitioners have failed to utilize their right under Article 119 of the Constitution before petitioning this Court.
2nd Respondent’s Case
40. In response to the petition, the 2nd respondent filed a replying affidavit through its Deputy Director, Legal and Board Services, Catherine Kassim sworn on 6th March 2025.
41. She avers that the RMLF is a special fund and is not part of the consolidated fund provided under Article 206(1) of the Constitution. It is stated that Section 7 of the Road Maintenance Levy Fund Act excludes proceeds from the fuel levy imposed under Section 3 of the Act, from being paid into the consolidated fund.
42. It is further asserted that the 2nd respondent is required under Section 6(2)(c) of the Kenya Roads Board Act to allocate 50% of the monies to the RMLF for the maintenance, rehabilitation and development of the road network. The other 50% as guided under Section 32A (2) of the Kenya Roads Act is set aside as security where necessary to meet financial demands for these objectives.
43. She informs that the Constitution classifies roads into two categories being national trunk roads (Class S, A, B and C) maintained by the national government and the county trunk roads (Class D, E, F and G) maintained by the respective county governments.
44. She avers that following the passing of the County Allocation Revenue Act in 2015, counties became beneficiaries of the RMLF through conditional grants issued by the 2nd respondent from 2015 - 2021. This constituted 15% of the funds paid into the RMLF.
45. It is noted that these funds were eventually incorporated into the counties equitable revenue share in the 2021/2022 financial year bringing to an end the conditional grant under the RMLF. Owing to this, she asserts that the 2nd respondent carried out its mandate as provided in law.
3rd to 8th Respondents’ Case
46. These respondents in reaction to the petition filed a Notice of Preliminary Objection dated 30th August 2024 on the grounds that:
i. The petition offends the doctrine of constitutional avoidance and the doctrine of exhaustion that demand that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.
ii. In effect, this Court lacks the requisite jurisdiction to take cognizance, hear and determine the application and petition, as per Section 20 of the Intergovernmental Relations Act. No. 2 of 2012.
iii. The application and petition are premature and gross abuse of the court process for want of compliance with Article 189(3) of the Constitution as read together with Sections 30, 31, 32, 33 and 34 of the Intergovernmental Relations Act. No.2 of 2012.
iv. For the reasons above the application and petition should be dismissed.
47. These respondents are said to have filed a replying affidavit dated 11th December 2023 by Engineer Silas Kinoti. This is however not available in the Court file or Court Online Platform (CTS).
Interested Parties Case
48. These parties’ responses and submissions to the petition are not in the Court file or Court Online Platform (CTS).
Petitioners’ Submissions
49. Manyonge Wanyama and Associates LLP for the petitioners filed submissions dated 5th February 2025. Counsel identified the issues for determination as: whether the National Assembly's decision of 28th September 2023 and 13th August 2024 to remove County Governments as beneficiaries of the RMLF is unconstitutional for violating the principles of devolution and equitable resource allocation; whether the Kenya Roads Act No. 2 of 2007, Kenya Roads Board Act, No. 7 of 1999 and the Road Maintenance Levy Fund Act align with the principles of devolution in the Constitution and whether the petitioners are entitled to the reliefs sought.
50. On the first issue, Counsel stated that the 1st respondent on 28th September 2023 adopted the proposal for reduction of the RMLF without consulting the 2nd interested party and the counties. As a result, county governments were in the end excluded as beneficiaries from the RMLF for the financial years from 2024 to 2026.
51. Additionally, the 1st respondent on 13th August 2024 proceeded to further remove county governments as beneficiaries of the conditional grant of Ksh.10, 522,211,853 in the 2024/2025 financial year. On this premise, Counsel asserted that these decisions ought to be quashed as the same were unlawful. This is because the 1st respondent failed to pay regard to the constitutional principles set out under Article 6, 186 and the Fourth Schedule of the Constitution.
52. Counsel stressed that the Constitution is clear that the relationship between the two levels which are both autonomous is mutual and thus all decisions must be based on consultation and co-operation. Unfortunately, this was not the case in this matter. It is argued that the 1st respondent overlooked the 2nd interested party’s role as envisaged under Article 96(1) and (3) of the Constitution while making the impugned decisions.
53. The 1st respondent in making the impugned decisions is also said to have failed to adhere to the principle of public participation under Article 10(2) and 118 of the Constitution. Additionally, the principles of public finance under Article 201 and equitable sharing of national revenue under Article 202, 203 and 205 of the Constitution were also contravened. It is argued that the 1st respondent unilaterally made the impugned decisions without consulting the public, relevant stakeholders and also the 2nd interested party.
54. Reliance was placed in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) (2019] eKLR where the Supreme Court outlined the principles of public participation as:
“Guiding Principles for public participation
(i) As a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
(ii) The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v) Public participation is not an abstract notion; it must be purposive and meaningful.
(vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
(vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
(ix) Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”
55. Like dependence was placed in Apollo Mboya v Attorney General & 2 others [2018]eKLR.
56. Furthermore, in this issue, Counsel submitted that the impugned decisions effectively excluded county governments from the RMLF. This exclusion is argued to be both procedurally and substantively flawed as was an unjust decision given their constitutional mandate on county roads management. Counsel stressed that the RMLF is collected from all public roads in Kenya thus counties are entitled to these funds so as to maintain their roads.
57. Counsel opposed the 1st respondent’s averment that the RMLF was incorporated into the equitable share terming it as misleading. Counsel submitted that this goes against the deliberations that were had in the 9th Summit as between the Nat
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1. The Petition dated 16th August 2024 is supported by the 5th petitioner’s Chief Executive Officer, Mary Mwiti’s affidavit in support of similar date.
2. The Petition assails the 1st respondent’s decision dated 28th September 2023 and 13th August 2024, that unilaterally excluded county governments from the Road Maintenance Levy Fund (RMLF) allocations for road maintenance in their respective counties. The Petitioners contend that the respondents action runs afoul the constitutional principles of devolution and equitable allocation of resources in respect of the county governments.
3. In addition, the Petition contests the constitutionality of the Kenya Roads Act and Kenya Roads Board Act on the basis that it does not conform to the Constitution, in particular, the Fourth Schedule of the Constitution.
4. The petitioners thus instituted this Petition against the respondents for violating various Constitutional provisions, namely, Articles 6 (1), 10, 118, 186 and also Section 18 of the Part 1 of the Fourth Schedule of the Constitution, and thus sought the following reliefs:
i. A declaration that given the territorial boundaries of county governments as provided in Article 6 (1) of the Constitution as read with the division of functions in Article 186 and the Fourth Schedule of the Constitution, the classification of public roads as national roads, rural and urban roads under Section 47 of the Kenya Roads Act, No. 2 of 2007-undermines the objectives of the devolution and the Fourth Schedule of Constitution.
ii. A declaration that Section 47 of the Kenya Roads Act, No. 2 of 2007 as read with the First Schedule of the Kenya Roads Act, No. 2 of 2007 is unconstitutional for violating Article 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
iii. A declaration that Section 6 of the Kenya Roads Board Act, 1999 is unconstitutional for violating the provisions of Articles 6, 10, 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
iv. A declaration that the decision of the National Assembly dated 28th September 2023 to unilaterally remove or fail to recognize County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024/2025 and 2025/2026 and another decision of 13th August 2024 to further remove County Governments as beneficiaries of Kshs. 10,522,211,853.00 conditional grants from funds derived from Road Maintenance Levy Fund ('RMLF' in the financial year 2024-2025-are illegal and unconstitutional for violating Article 10, 118, 186 and Section 18 of Part I of Fourth Schedule of the Constitution.
v. An order of Certiorari be issued to quash the decision of the National Assembly of 28th September 2023 that unilaterally removed and/or failed to recognize County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024-2025 and another decision of 13th August 2024 to further remove County Governments as beneficiaries of Kshs. 10,522,211,853.00 conditional grants from funds derived from Road Maintenance Levy Fund ('RMLF') in the financial year 2024-2025.
vi. A mandatory order be issued directing the Kenya Roads Board to the Cabinet Secretary National Treasury and Economic Planning, Cabinet Secretary, Roads and Transport and Parliament to take appropriate budgetary measures to include County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024/2025, 2025/2026, and all subsequent years.
vii. A mandatory order be issued directing the Kenya Roads Board to disburse to the county governments the sum of Kshs. 10.522,221,853.00 due to them for the financial year 2024/2025.
viii. A mandatory order be issued directing the Kenya Roads Board, and Cabinet Secretary Roads and Transport, Attorney General, and Parliament to take appropriate measures to amend the Kenya Roads Board Act of 1999 to include County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') forthwith.
ix. An Order be issued directing the Cabinet Secretary of Roads and Transport and the Attorney General to take appropriate measures within 12 months to reclassify all roads in Kenya to accord to the constitutionally permissible framework, that is to say (national trunk roads and county roads).
x. An order be issued directing the Cabinet Secretary, Ministry of Roads and Transport, Attorney General, and Parliament to take appropriate measures within 12 months to amend the Kenya Roads Act No. 2 of 2007, Kenya Roads Board Act, No. 7 of 1999 and the Road Maintenance Levy Fund Act to align with the Constitution relating to the functions of County Governments in the Transport and Roads sector.
xi. A permanent injunction be issued against the respondents from removing county governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF').
xii. A permanent injunction be issued against Kenya Roads Board stopping it from funding Kenya Urban Roads Authority and Kenya Rural Roads Authority from the Road Maintenance Levy Fund ('RMLF').
xiii. Costs of the petition.
Petitioners’ Case
5. One of the fundamental features introduced with the promulgation of the Constitution is devolved government system that has the national and county governments. The petitioners allege this system has had its fair of challenges in implementation mostly because of the national government’s resistance to implement the devolved government system especially in distribution of monies that are required to finance devolved functions.
6. It is against this background that the Petitioner through the deponent, Mary Mwiti impugns the 1st respondent’s two major decisions. The two decisions that the Petitioners complain about are first, the decision on 28th September 2023 in which the 1st Respondent removed county governments as beneficiaries of funds of the RMLF and the second was the one made on 13th August 2024 that removed county governments from benefiting from Kshs. 10,522,211,853.00 conditional grant raised through RMLF in the financial year 2024/2025.
7. The Petitioners assert that the source of all this is Section 4 and 6 of the Kenya Roads Board Act which provides that the 2nd respondent is the one mandated to administer the RMLF.
8. This Fund established under Section 7 of the Road Maintenance Levy Fund Act comprises of taxes collected when one purchases fuel and is used to maintain Kenyan roads.
9. These funds under Section 20 of the Act are to be made out to the road agencies being Kenya National Highways Authority (KENHA), Kenya Rural Roads Authority (KeRRA), Kenya Urban Roads Authority (KURA) and the Kenya Wildlife Service (KWS).
10. It is averred that the Constitution under Section 18 (b) and (c) of the Fourth Schedule as read with Articles 186 (1) and 187 (2) provides that county governments are responsible for construction and maintenance of county roads. To implement this, it is asserted that the national government was required to amend the Kenya Roads Boards Act including the Kenya Roads Act to provide for the maintenance of county roads from the RMLF.
11. It is underscored that this was not done and thus the Kenya Roads Act is not in harmony with the Constitution. Moreover, the petitioners aver KeRRA and KURA continue to exist and perform the functions of the county governments even as county governments continue to push for the funds from the RMLF to maintain roads.
12. In this regard, she depones that in the 2013 to 2022 financial years, the county governments received funds from the RMLF in the form of either conditional grants or equitable shares. Moreover, it is stated that vide Legal Notice No. 2 of 2016 dated 22nd January 2016, the roads were classified into national trunk roads (Class A, B, C and S) and county roads (Class D, E, F, and G) making counties direct beneficiaries of the RMLF. Similarly, on 11th February 2023, a resolution was passed to the effect that County Governments should receive funds from the RMFL for the 2024/2025 financial year as conditional grants.
13. In a surprise move, a decision was made on 28th September 2023 that unilaterally removed county governments as beneficiaries of monies from the RMLF in the 2024/2025 and 2025/2026 financial year.
14. The petitioners contend that the 1st respondent’s impugned decision adversely affects the financing of the devolved government system and was made without public participation and arbitrarily and amounts to abuse of the 1st respondent’s powers under Article 94 and 95 of the Constitution.
15. The petitioners’ averred that they a challenge was made on the constitutionality of the impugned decision in Nairobi Constitutional Petition No. E456 of 2023: Issa Elanyi Chamao & 4 Others Versus the National Assembly of Kenya, & 8 Others wherein they were granted conservatory orders. The 1st respondent in a bid to extend an olive branch requested the petitioners that they settle the matter out of Court.
16. It is alleged that withdrawal of the petition was on the understanding that the funds that county governments were to lose through removal as beneficiaries of the RMLF would be compensated through allocations of conditional grant in the sum of Kshs 10.522,221,853 as broken down in the affidavit per County, through the County Governments Additional Allocations Bill, 2024. Amenable to the proposal, the petitioners proceeded to withdraw the petition on 8th February 2024.
17. It is alleged that going against its undertaking, the 1st respondent on 13th August 2024, ensued to remove the entire sum of Kshs 10,522,221,853 from the County Governments Additional Allocations Bill, 2024.In effect this denied all the County governments funds to maintain county roads whilst the roads agencies continue to receive the RMLF which as stressed goes against the county governments constitutional mandate to maintain county roads.
18. Accordingly, the petitioners bring this petition against the respondents challenging the constitutionality of the 1st respondent’s impugned decisions, the continued disbursement of the RMLF to the road agencies which is also argued to be discriminative and unconstitutional, equally whether the establishment of KURA and KeRRA are in line with the Constitution and whether the provisions of Section 6 of the Kenya Roads Board Act 1999, Section 47 of the Kenya Roads Act 2007 and Section 7 of the Road Maintenance Levy Fund Act, 1993 are constitutional to the extent that they do not recognize county governments.
1st Respondent’s Case
19. In response to the petitioners’ case, the 1st respondent filed grounds of opposition dated 28th August 2024 and a replying affidavit by the Clerk of the National Assembly, Samuel Njoroge sworn on 6th March 2025.
20. The grounds of opposition are on the basis that:
i. The petition herein is premature to the extent that it seeks to pre-empt the decision of Parliament on the County Government Additional Allocations Bill, Senate Bill No. 19 of 2024 in violation of the doctrine of ripeness.
ii. The application and petition herein are premised on material non-disclosure of the fact that the impugned decision of the National Assembly is a proposed amendment to the Bill which is still undergoing the legislative process.
iii. The petitioners are inviting the Court to usurp the exclusive legislative mandate of Parliament by asking the Court to amend the Bill that is before Parliament.
iv. The orders sought by the petitioners in the application are final orders which will prejudice the respondents if granted before Parliament concludes its deliberations on the Bill.
v. The application and petition herein violate the provisions of Articles 112 and 113 of the Constitution which provide the procedure for deliberation on an ordinary Bill concerning County Governments.
vi. The petition and application are based on the misguided assumption that Kshs. 10.552 Billion has already been set aside and allocated to County Governments from the Roads Maintenance Levy Fund.
vii. The petitioners are inviting the Court to appropriate Kshs. 10.552 Billion. The power to appropriate funds is a preserve of Parliament.
viii. The orders sought by the petitioners are pre-emptive in nature as the Bill is not guaranteed to pass in the Senate. If the Senate rejects the Bill as amended, the Bill shall be referred to mediation as contemplated under Article 113 of the Constitution.
ix. The petitioners’ are seeking to interfere with a legitimate legislative process in utter violation of the principle of separation of powers and has failed to provide any cogent reasons for the grant of the orders sought in the application and petition before this Court.
x. The petitioners failed to disclose that the impugned amount was arrived at during deliberations between the National Government executive and the Counties. Such an agreement is not binding on Parliament which has the power to determine revenue sharing between the two arms of government.
xi. The petitioners are inviting the Court to determine quantum of revenue allocation. This amounts to inviting the Court to determine a political question which requires determination by parliament when considering revenue allocation between the two levels of government.
xii. The petitioners are using the Courts to determine a revenue allocation process which is an entirely political process under Article 95, 96 203, 217, 218, 95 and 96 of the Constitution. If the Courts permit this, they will be opening the door for various sectors to leverage the judicial system to influence how revenue allocation, a responsibility of Parliament, is carried out. This would effectively be the Courts assuming the role of determining revenue allocation and appropriation.
xiii. The Kenya Urban Roads Authority (KURA) and the Kenya Rural Roads Authority (KERRA) are national government agencies established under the Kenya Roads Act, 2007 and the agencies carry out their mandate within the scope of national government functions provided for in Part 1 of the Fourth Schedule of the Constitution.
21. Mr. Samuel Njoroge on behalf of the 1st Respondent swore that Article 202 of the Constitution provides that revenue raised nationally is to be shared equitably between the national and county governments. In addition, the county governments can get additional allocations either conditionally or unconditionally. Moreover, county governments are entitled to the equalization fund which is primarily used to cater for water, roads, health facilities and electricity. Consequently, he asserted that other than the monies provided for in law, county governments are not entitled to demand additional funds as there is no legal basis.
22. He stated that the RMLF is a special fund that is provided under the Roads Maintenance Levy Fund Act administered by the 2nd respondent and allocated to the designated road agencies.
23. For context, he stated that county governments first became beneficiaries of the RMLF as a conditional grant from the national government in the 2015/2016 Financial Year. This was based on the need to support counties maintain their local roads as contained in the County Allocation of Revenue Act. On this premise, the 2nd respondent allocated 15% of the RMLF for 6 years from that financial year until the 2020/2021 financial year.
24. He notes however that during consideration and approval of the Third Generation Revenue Sharing Formula as envisaged under Article 217 of the Constitution, the conditional grant drawn from RMLF was stopped because the maintenance of county roads was incorporated into the equitable revenue share.
25. Considering this, during the 2021/2022 and 2022/2023 financial years, county governments were not issued with any conditional grants from the RMLF and have not since. He informs that to do so, the national government dropped the conditional share from the RMLF and increased the county equitable share from Kshs. 316.5 billion to Kshs. 370 billion as can be gleaned from the Division of Revenue Act and the County Allocation of Revenue Act.
26. He states that this decision was guided by the need to ensure that no county would get less funds in the 2021/2022 financial year than what they had been allocated in the 2020/2021 financial year. The basis of this decision is stated to have stemmed from the fact that the new revenue sharing formula (the Third Generation Revenue Sharing Formula) was discovered to be disadvantageous to certain counties especially those with a large land area.
27. Therefore, to attain the 17% increase without interfering with other government operations, a decision was made to absorb the granted RMLF into the equitable revenue share as part of the Ksh.53.5 billion increase. Following this, each county government was required to inter alia utilize their allocated share to maintain their roads.
28. He avers thus that contrary to the petitioners’ allegations, county governments continue to receive adequate funds as allocated through the Division of Revenue Act and subsequently apportioned through the County Allocation of Revenue Act.
29. It is also noted that the national government despite its own financial constraints has consistently allocated to county governments, revenue exceeding the minimum 15% stipulated in Article 203(2) of the Constitution, including supplementary funds from the national government's revenue share under Article 202 of the Constitution, and financial support in the form of loans and grants from development partners.
30. Equally, the petitioners’ allegation of discrimination in allocation of the RMLF is opposed since this fund maintains all the roads across the country for the benefit of all people.
31. Turning to the County Government Additional Allocation Bill, 2024, he depones that the 2nd interested party published this Bill on 28th March 2024 and passed the same on 11th June 2024. Thereafter the Bill was submitted to the 1st respondent for consideration.
32. Essentially, the Bill sought to make provisions for transfer of the national government's share of revenue as well as monies from development partners to the county governments for the 2024/2025 financial year at the rate of Kshs. 61.9 Billion.
33. The Bill was committed to the 1st respondent’s Budget and Appropriations Committee. The Committee considered it and tabled its report on 13th August 2024. It was recommended that in light of budget rationalization, the proposed additional allocations to county governments be reduced from Kshs. 61.9 Billion to Kshs. 46.6 Billion for the 2024/2025 Financial Year. Additionally, the Report noted that the allocation for maintenance of county roads was Kshs. 10.522 Billion from RMLF for the 2024/2025 Financial Year despite the money having been incorporated into the equitable share for county governments. On this premise, the Committee declined the proposal as the allocation to county governments was noted as already forming part of the Division of Revenue Act, 2023.
34. In the end, the Committee recommended that the 1st respondent pass the Bill with the cited amendments. The 1st respondent considered the Bill on 13th and 14th August 2024 and passed it with the amendments on 14th August 2024.
35. Soon after on 20th August 2024, the Bill was transmitted to the 2nd interested party for consideration on the raised amendments. These amendments were considered and rejected on 23rd October 2024. As a result, a Mediation Committee was appointed by the Speakers of both Houses in line with Article 113 of the Constitution so as to develop a version of the Bill for consideration by both Houses.
36. He depones that during the legislative process, the petitioners instituted this suit and were granted conservatory orders on 19th August 2024.The orders suspended the 1st respondent’s impugned decision dated 13th August 2024; also suspended its decision to remove the Ksh.10, 522,211,853 as the conditional grant from the RMLF and froze the funds held by the 2nd respondent to the extent of Ksh.10,522,211,853.
37. This in effect stopped the Mediation Committee’s proceedings which are required to be complete within 30 days and curtailed the legislative process. It is stressed that this fact, was not disclosed by the petitioners in a bid to mislead to the Court. Issuance of the conservatory orders is said to be in breach of the doctrine of separation of powers and against public interest.
38. He avers as well that direction by this Court to the 1st respondent to enact legislation in this regard and classification of roads would be in violation of the doctrine of separation of powers. For these reasons, the petitioners’ assertions in this regard are termed as premature.
39. Additionally, it was argued that the petitioners had failed to demonstrate the prejudice that would be occasioned by KURA and KeRRA exercising their legislative mandate as envisaged in the Kenya Roads Act. Equally, it is underscored that the petitioners' allegations of unconstitutionality of Section 47 of the Kenya Roads Act, 2007 and Section 6 of the Kenya Roads Board Act is unfounded. Lastly, he asserts that the petitioners have failed to utilize their right under Article 119 of the Constitution before petitioning this Court.
2nd Respondent’s Case
40. In response to the petition, the 2nd respondent filed a replying affidavit through its Deputy Director, Legal and Board Services, Catherine Kassim sworn on 6th March 2025.
41. She avers that the RMLF is a special fund and is not part of the consolidated fund provided under Article 206(1) of the Constitution. It is stated that Section 7 of the Road Maintenance Levy Fund Act excludes proceeds from the fuel levy imposed under Section 3 of the Act, from being paid into the consolidated fund.
42. It is further asserted that the 2nd respondent is required under Section 6(2)(c) of the Kenya Roads Board Act to allocate 50% of the monies to the RMLF for the maintenance, rehabilitation and development of the road network. The other 50% as guided under Section 32A (2) of the Kenya Roads Act is set aside as security where necessary to meet financial demands for these objectives.
43. She informs that the Constitution classifies roads into two categories being national trunk roads (Class S, A, B and C) maintained by the national government and the county trunk roads (Class D, E, F and G) maintained by the respective county governments.
44. She avers that following the passing of the County Allocation Revenue Act in 2015, counties became beneficiaries of the RMLF through conditional grants issued by the 2nd respondent from 2015 - 2021. This constituted 15% of the funds paid into the RMLF.
45. It is noted that these funds were eventually incorporated into the counties equitable revenue share in the 2021/2022 financial year bringing to an end the conditional grant under the RMLF. Owing to this, she asserts that the 2nd respondent carried out its mandate as provided in law.
3rd to 8th Respondents’ Case
46. These respondents in reaction to the petition filed a Notice of Preliminary Objection dated 30th August 2024 on the grounds that:
i. The petition offends the doctrine of constitutional avoidance and the doctrine of exhaustion that demand that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion.
ii. In effect, this Court lacks the requisite jurisdiction to take cognizance, hear and determine the application and petition, as per Section 20 of the Intergovernmental Relations Act. No. 2 of 2012.
iii. The application and petition are premature and gross abuse of the court process for want of compliance with Article 189(3) of the Constitution as read together with Sections 30, 31, 32, 33 and 34 of the Intergovernmental Relations Act. No.2 of 2012.
iv. For the reasons above the application and petition should be dismissed.
47. These respondents are said to have filed a replying affidavit dated 11th December 2023 by Engineer Silas Kinoti. This is however not available in the Court file or Court Online Platform (CTS).
Interested Parties Case
48. These parties’ responses and submissions to the petition are not in the Court file or Court Online Platform (CTS).
Petitioners’ Submissions
49. Manyonge Wanyama and Associates LLP for the petitioners filed submissions dated 5th February 2025. Counsel identified the issues for determination as: whether the National Assembly's decision of 28th September 2023 and 13th August 2024 to remove County Governments as beneficiaries of the RMLF is unconstitutional for violating the principles of devolution and equitable resource allocation; whether the Kenya Roads Act No. 2 of 2007, Kenya Roads Board Act, No. 7 of 1999 and the Road Maintenance Levy Fund Act align with the principles of devolution in the Constitution and whether the petitioners are entitled to the reliefs sought.
50. On the first issue, Counsel stated that the 1st respondent on 28th September 2023 adopted the proposal for reduction of the RMLF without consulting the 2nd interested party and the counties. As a result, county governments were in the end excluded as beneficiaries from the RMLF for the financial years from 2024 to 2026.
51. Additionally, the 1st respondent on 13th August 2024 proceeded to further remove county governments as beneficiaries of the conditional grant of Ksh.10, 522,211,853 in the 2024/2025 financial year. On this premise, Counsel asserted that these decisions ought to be quashed as the same were unlawful. This is because the 1st respondent failed to pay regard to the constitutional principles set out under Article 6, 186 and the Fourth Schedule of the Constitution.
52. Counsel stressed that the Constitution is clear that the relationship between the two levels which are both autonomous is mutual and thus all decisions must be based on consultation and co-operation. Unfortunately, this was not the case in this matter. It is argued that the 1st respondent overlooked the 2nd interested party’s role as envisaged under Article 96(1) and (3) of the Constitution while making the impugned decisions.
53. The 1st respondent in making the impugned decisions is also said to have failed to adhere to the principle of public participation under Article 10(2) and 118 of the Constitution. Additionally, the principles of public finance under Article 201 and equitable sharing of national revenue under Article 202, 203 and 205 of the Constitution were also contravened. It is argued that the 1st respondent unilaterally made the impugned decisions without consulting the public, relevant stakeholders and also the 2nd interested party.
54. Reliance was placed in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) (2019] eKLR where the Supreme Court outlined the principles of public participation as:
“Guiding Principles for public participation
(i) As a constitutional principle under article 10(2) of the Constitution, public participation applies to all aspects of governance.
(ii) The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.
(iii) The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.
(iv) Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation.
(v) Public participation is not an abstract notion; it must be purposive and meaningful.
(vi) Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.
(vii) Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process.
(viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.
(ix) Components of meaningful public participation include the following:
a. clarity of the subject matter for the public to understand;
b. structures and processes (medium of engagement) of participation that are clear and simple;
c. opportunity for balanced influence from the public in general;
d. commitment to the process;
e. inclusive and effective representation;
f. integrity and transparency of the process;
g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.”
55. Like dependence was placed in Apollo Mboya v Attorney General & 2 others [2018]eKLR.
56. Furthermore, in this issue, Counsel submitted that the impugned decisions effectively excluded county governments from the RMLF. This exclusion is argued to be both procedurally and substantively flawed as was an unjust decision given their constitutional mandate on county roads management. Counsel stressed that the RMLF is collected from all public roads in Kenya thus counties are entitled to these funds so as to maintain their roads.
57. Counsel opposed the 1st respondent’s averment that the RMLF was incorporated into the equitable share terming it as misleading. Counsel submitted that this goes against the deliberations that were had in the 9th Summit as between the Nat
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