Published: February 6, 2026 | 02:26 PM (EAT)
Nairobi — The long-running legal contest over the constitutionality of the National Government Constituencies Development Fund (NG-CDF) is headed to the Supreme Court, following a fresh move by litigants seeking to overturn a recent Court of Appeal ruling.
On Friday, Wanjiru Gikonyo and Cornelius Oduor Opuot lodged a Notice of Appeal, formally signaling their intention to challenge the appellate court’s decision that upheld the legality of the NG-CDF Act, 2015.
The notice, dated February 6, 2026, indicates that the respondents are dissatisfied with the entire judgment delivered earlier in the day and will ask the Supreme Court to review both the findings and orders issued by the Court of Appeal.
Appeal Court Reinstated NG-CDF Law
The contested ruling was delivered by a three-judge bench led by Court of Appeal President Justice Daniel Musinga, alongside Justices Francis Tuiyott and A. O. Muchelule. The judges reversed a High Court decision that had invalidated the NG-CDF Act in its entirety.
In its reasoning, the appellate court faulted the High Court for failing to undertake a comprehensive constitutional assessment before striking down the statute. The judges emphasized that matters involving public finance, devolution, and intergovernmental relations require careful judicial restraint.
The court concluded that the NG-CDF framework does not interfere with the constitutional roles of county governments and does not undermine the principles of devolution as outlined in the Constitution.
Partial Invalidity Maintained
While largely upholding the Act, the Court of Appeal struck out Section 43(9), which tied the tenure of constituency fund managers to the lifespan of Parliament and election cycles. The judges ruled that the provision blurred institutional boundaries and violated the principle of separation of powers.
The removal of the section, however, did not affect the overall validity of the law.
Budget Oversight Emphasised
On issues of public finance, the appellate judges dismissed concerns that the NG-CDF operates outside constitutional controls. They observed that allocations to the fund are approved annually through the national budget process and are subject to oversight by Parliament and audit by the Auditor-General.
The court cautioned against nullifying legislation based on speculative risks, noting that constitutional review must be grounded in demonstrable violations rather than hypothetical outcomes.
Path to Final Determination
The appeal stems from a case initially filed at the High Court, which in September 2024 ruled that the NG-CDF Act was unconstitutional. That decision was challenged by the National Assembly, leading to the Court of Appeal’s reversal.
With the notice of appeal now filed, the matter is expected to proceed to the Supreme Court, where a final determination on the future of the NG-CDF framework will be made.
