Supreme Court declares CDF Act 2013 unconstitutional

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Elections
The Supreme Court building.

The Supreme Court has declared the Constituency Development Fund Act, 2013 unconstitutional.

Chief Justice Martha Koome, Deputy Chief Justice Philomena Mwilu, Justice Njoki Ndung’u, Justice William Ouko and Justice Smokin Wanjala declared CDF Act, 2013 (Amendment) Act, 2013 unconstitutional on account of procedural lapses for failing to involve the Senate in its enactment.

The court also ruled that the CDF Act 2013 offends constitutional principles on the division of revenue and CDF Act 2013 offends constitutional principles on public finance.  

According to the judges, the Act offends the constitutional principle of separation of powers.

“The CDF Act 2013 offends the division of functions between the national and county governments,” ruled the judges.

The Institute for Social Accountability and Centre for Enhancing Democracy and Good Governance filed an appeal challenging the judgement and orders of the Court of Appeal which partially allowed an appeal against the decision of ( Justice Isaac Lenaola (as he then was), Mumbi (as she then was) and Justice Majanja, JJ) in High Court Petition.

On the other hand, the National Assembly filed a Cross-Appeal in 2019 also partially challenging the appellate court’s finding. 

In 2007, the CDF Act 2003, was amended to establish the National CDF Board at the constituency level to replace the National Committee. CDF Committees were also established with respective Members of Parliament being the Constituency Committee patrons.  

On January 14, 2013, the CDF Act 2013 was enacted and in doing so, repealed the CDF Act 2007 and aggrieved by the enactment of the CDF Act 2013, two (2) petitions were filed at the High Court.