The High Court in Nairobi has ruled the National Assembly’s exclusion of county governments from the Road Maintenance Levy Fund unconstitutional.

 Justice Lawrence Mugambi delivered the judgment on Thursday, June 5.

The petitioners challenged decisions made by the National Assembly on September 28, 2023, and August 13, 2024, which excluded counties from receiving allocations from the fund.

They argued this violated constitutional principles of devolution and equitable resource sharing.

This comes barely a month after the Council of Governors said it is willing to withdraw a court case challenging its exclusion from use of the Sh10.5 billion Road Maintenance Levy Fund if the National Treasury consults the 47 county governments.

Homa Bay Governor Gladys Wanga told a National Assembly Budget and Appropriations Committee meeting that the governors want to settle the matter outside court if possible, seeking clarity on the fund’s implementation.

“The Council of Governors is willing to have this matter sorted out of court if possible and is willing to engage Members of the National Assembly towards achieving this,” said Wanga.

The committee chair, Alego Usonga MP, Samuel Atandi, said delays in passing the County Governments Additional Allocation Bill 2025 have stalled road projects by the Kenya Rural Roads Authority.

CoG should explore an out-of-court settlement, Atandi said, as stalled roads risk delaying development and the bill aims to unlock Sh50.5 billion in allocations to counties from development partners.

The bill, a republication of the 2024 version, stalled after the National Assembly and Senate failed to agree on the amount to allocate to counties, with the Assembly proposing Sh25.3 billion and the Senate Sh50.5 billion.

Justice Mugambi declared the National Assembly’s decisions null and found Sections 47 of the Kenya Roads Act and 6 of the Kenya Roads Board Act unconstitutional for undermining counties’ mandate to maintain roads under the Fourth Schedule of the Constitution.

The court did not issue coercive orders against Parliament but directed future Road Maintenance Levy Fund allocations to include county governments.

“The exclusion of county governments threatens the spirit of devolution entrenched in our Constitution,” said Mugambi.

Petitioners argued the exclusion violated constitutional principles of devolution, equitable resource sharing and public participation. Respondents claimed the issue was premature and that the fund was included in the counties’ equitable share.

The court rejected arguments that the dispute should be resolved only through intergovernmental forums, confirming it had jurisdiction.

Mary Mwiti, CEO supporting the petitioners, said, “This ruling restores the rightful role of counties in maintaining their roads and promotes equity.”

The ruling strengthens counties’ constitutional mandates and oversight over road infrastructure funding and calls for cooperation between national and county governments in resource allocation.