Battle on NG-CDF legality heads to Supreme Court as respondents file Notice of Appeal

The battle over the legality of the National Government Constituencies Development Fund (NGCDF) is set to move to the Supreme Court following the filing of a notice of appeal by the respondents in the case.

Wanjiru Gikonyo and Cornelius Oduor Opuot formally notified the Court of Appeal of their intention to challenge its decision that upheld the constitutionality of the National Government Constituencies Development Fund Act, 2015.

In the notice dated February 6, 2026, the respondents stated that they were aggrieved by the entire judgment and orders of the Court of Appeal and would be seeking redress at the Supreme Court.

"TAKE NOTICE that the 1st and 2nd Respondents herein, Wanjiru Gikonyo and Cornelius Oduor Opuot, being aggrieved by the entire judgment (Hon. Musinga (P), Hon Tuiyott, Hon Muchelule JJ.A.) in Civil Appeal No. E884 of 2024, as consolidated 20 with E868 of 2024, delivered on 6 February 2026, intend to appeal to the Supreme Court against the entire judgment and orders," reads the notice.

A three-judge bench comprising Court of Appeal President Justice Daniel K. Musinga, Justice Francis Tuiyott, and Justice A. O. Muchelule, overturned an earlier High Court ruling that had declared the NG-CDF Act unconstitutional in its entirety.

The appellate court faulted the High Court for striking down the entire statute without conducting a sufficiently detailed and principled constitutional analysis, particularly on issues touching on public finance, devolution, and the separation of powers.

In its decision, the Court of Appeal held that the NG-CDF Act does not violate the structure or principles of devolution, nor does it offend the constitutional division of functions between national and county governments. The judges further ruled that the petition before the High Court had not been rendered moot by amendments to the Act enacted in 2022 and 2023.

However, the appellate court agreed in part with the High Court by finding Section 43(9) of the Act unconstitutional. The provision, which tied the tenure of a constituency fund manager to the term of Parliament and election transition periods, was found to infringe the doctrine of separation of powers and was consequently severed from the statute.

On matters of public finance, the Court of Appeal rejected the High Court’s conclusion that the NG-CDF Act was inconsistent with constitutional principles. The judges emphasized that courts should not invalidate legislation on the basis of speculative or hypothetical harm, noting that NG-CDF expenditure forms part of the national budget approved annually by the National Assembly through the Appropriations Act.

The court also pointed to multiple layers of accountability built into the law, including mandatory accounting, audits by the Auditor-General, and parliamentary oversight mechanisms.

In setting aside the High Court judgment issued on September 20, 2024, the appellate judges criticised the trial court for failing to clearly demonstrate how the impugned provisions violated specific constitutional text and principles. They cited the U.S. Supreme Court decision in U.S. v. Butler (1936), underscoring that courts are not tasked with approving or condemning legislative policy but only with determining constitutional compliance.

The Court of Appeal ruling followed an appeal by the National Assembly, which had challenged the High Court’s September 24, 2024, decision that invalidated the NG-CDF Act.