The High Court has extended an order freezing the disbursement of Sh10.5 billion from the Roads Maintenance Levy Fund, pending the determination of a petition filed by council of governors (CoG).
Justice Lawrence Mugambi extended the freeze until determination of the case as he directed State agencies including the Kenya Roads Board, CSs Treasury and Transport, Kenya Urban Roads Authority (Kura) and Kenya Rural Roads Authority (KeRRA) to file their responses in the matter.
Through lawyer Peter Wanyama, CoG said none of the parties had filed their responses to the petition challenging the decision to deny county governments the funds.
“The conservatory order (stopping the disbursement) shall remain in force, pending the determination of the petition,” said the judge. He pushed the case to March 31, 2025 when parties will highlight their submissions and get a judgement date.
CoG alongside Mr Issa Elanyi Chamao, Mr Patrick Ekirapa and Mr Paul Kirui and International Legal Consultancy Group sued the government arguing that the decision by the National Assembly to remove the devolved units as beneficiaries of the levy was unconstitutional. The petitioners said the decision has far-reaching implications on the funding of the devolved government system.
Further, the decision was made without public participation or the concurrence of the senate.
“The decision promotes arbitrariness in decision making, sustains bad governance and is manifestly an abuse of parliamentary powers of the National Assembly,” the petition reads.
CoG said the National Assembly had on September 23, last year decided to unilaterally remove county governments as beneficiaries of the Road Maintenance Levy Fund for the 2024-2025 and 2025-2026 financial years, citing section 6 of the Kenya Roads Board Act, 1999.
The decision was challenged in the High Court and a conservatory order was issued, suspending the decision.
The case was, however, withdrawn in February this year in an out of court settlement as Parliament promised to allocate Sh10.5 billion to the county governments through the County Governments Additional Allocation Bill, 2024.
The National Assembly later reneged on the promise and the petitioners are apprehensive that county governments will get zero funds, yet they have a constitutional responsibility over county roads.
“Effectively, the National Assembly has by design and subterfuge out-rightly denied all the 47 county governments funds to maintain roads, which funds the Kenya Roads Board collects from Kenyans every day from purchase of fuel and is available in the bank account of the Board for use,” stated the petition.
Denying the counties the funds meant that the board will channel funds through the Kenya National Highways Authority (KeNHA) Kura, KeRRA and the Kenya Wildlife Service (KWS).
“The petitioners aver those disbursements of the funds to KeNHA, KURA, KeRRA and KWS to the exclusion of the county governments is openly discriminatory and deeply unconstitutional,” Mr Elanyi said in an affidavit.
The petitioners will be asking the court to compel the Attorney to amend the provisions of the Kenya Roads Act 2007 to provide for an institutional framework that supports the constitutional classification of roads being national trunk roads and county roads.
