The High Court in Nairobi has declared the National Assembly’s decision to exclude county governments from the Road Maintenance Levy Fund (RMLF) allocations for the financial years 2024-25 and 2025-26 as unconstitutional.

The judgment delivered on Thursday, June 5, at the Milimani Law Courts by Justice Lawrence Mugambi came in response to a petition filed by Issa Elanyi Chemao and others.

It represents a major step in the broader effort to ensure equitable resource sharing between the national and county governments.

The petition, supported by an affidavit from Mary Mwiti, CEO of the Council of Governors, challenged two key decisions made by the National Assembly.

First was the exclusion of counties from the RMLF allocations on September 28, 2023.

The second was the removal of Sh10.5 billion in conditional road maintenance grants to counties on August 13, 2024.

The petitioners contended that both actions undermined devolution and violated constitutional provisions related to the division of government functions and the fair sharing of national resources.

At the heart of their case was the argument that the national government’s reluctance to devolve road maintenance funding directly threatened the foundational principles of Kenya’s devolved system.

The court echoed this concern, observing that, “the actions on the part of the 1st Respondent constitute actual threat that is certain to negatively affect a fundamental Constitutional objective relating to devolution for its execution will effectively deprive County Governments [of] funds to undertake a vital constitutional function” .

According to the court, the responsibility for constructing and maintaining county roads clearly belongs to county governments under Section 18(b) and (c) of the Fourth Schedule and Articles 186(1) and 187(2) of the Constitution.

Yet, neither the Kenya Roads Board Act nor the Kenya Roads Act had been amended to reflect this constitutional mandate.

As a result, RMLF funds continued to be channeled to national agencies like KeRRA and KURA, bypassing the counties entirely.

The court’s ruling also recounted a series of developments that intensified the dispute.

After counties were initially excluded from the RMLF in September 2023, the petitioners sought and were granted conservatory orders through Nairobi Constitutional Petition No. E456 of 2023.

Hoping for a resolution, the National Assembly later offered an out-of-court settlement, promising to allocate Sh10.5 billion to counties through the County Governments Additional Allocations Bill, 2024.

On this basis, the petitioners withdrew their case on February 8, 2024.

However, the promise was broken just months later.

On August 13, 2024, the National Assembly removed the full allocation from the Bill, effectively denying counties any funds for road maintenance.

 “This denied all the county governments funds to maintain county roads whilst the road agencies continue to receive the RMLF which, as stressed, goes against the county governments’ constitutional mandate to maintain county roads,”  the court remarked.

In defense, the National Assembly, represented by Clerk Samuel Njoroge, argued that the petition was premature and that the court should not interfere with Parliament’s legislative mandate.

They maintained that the RMLF is a special fund managed by the Kenya Roads Board and intended solely for national agencies, with counties only entitled to funding as expressly provided by statute.

According to the respondents, the court was being invited to overstep its mandate and interfere with a revenue allocation process they described as a political function governed by Articles 95, 96, 203, 217, and 218 of the constitution.

Despite this defense, the High Court ruled in favour of the petitioners.

It declared the exclusion of counties from the RMLF unconstitutional and ordered the restoration of the Sh10.5 billion conditional grant.

The court also directed the Kenya Roads Board, the Cabinet Secretary for the National Treasury, and Parliament to take all necessary steps—both legislative and budgetary—to include counties as beneficiaries of the RMLF in current and future financial years.

In addition, the court ordered amendments to both the Kenya Roads Act and the Kenya Roads Board Act within 12 months to bring them into alignment with the Constitution.

It further mandated a reclassification of all roads in Kenya, distinguishing national trunk roads from those under the jurisdiction of county governments.

The ruling stated: “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” .

The judgment sets a powerful precedent for devolution in Kenya.

By affirming counties’ right to direct funding for road maintenance, the court reinforced the constitutional principles of equitable resource sharing and local autonomy.

 “The continued disbursement of the RMLF to the road agencies, to the exclusion of county governments, is discriminative and unconstitutional,” the judgment concluded.