Court of Appeal Reinstates NG-CDF Law in Major Boost for Parliament
The Court of Appeal has overturned a High Court ruling that had declared the National Government Constituencies Development Fund (NG-CDF) Act, 2015 unconstitutional, delivering a major legal and political victory for Parliament and Members of the National Assembly. In a judgment delivered in Nairobi on 6 February 2026, the appellate court held that the NG-CDF Act does not violate the principles and structure of devolution nor infringe the doctrine of separation of powers, except for one limited provision that was severed from the law.
The decision reverses a far-reaching High Court judgment issued on 20 September 2024, which had invalidated the entire NG-CDF Act on grounds that it undermined devolution, offended public finance principles, breached the separation of powers, and was enacted without the required involvement of the Senate. That ruling had cast uncertainty over the future of a fund that has, for years, played a central role in financing grassroots development projects across the country.
The appeal was heard by a three-judge bench comprising Court of Appeal President Justice Daniel K. Musinga, alongside Justices F. Tuiyott and A. O. Muchelule. The consolidated appeals were brought by the National Assembly and the National Government Constituencies Development Fund Board against several respondents, including civil society actors and state institutions.
At the core of the dispute was whether NG-CDF, as structured under the 2015 Act and subsequent amendments, was compatible with Kenya’s constitutional architecture under the 2010 Constitution, particularly the devolved system of governance and the strict separation of roles among the Legislature, Executive, and independent offices.
In overturning the High Court’s decision, the Court of Appeal firmly rejected the finding that the NG-CDF Act violates the principles and structure of devolution. The judges held that the Constitution does not prohibit the national government from implementing development projects at the local level, provided such projects fall within functions allocated to the national government under the Fourth Schedule of the Constitution.
The appellate court emphasized that the Constitution does not bar the national government from operating at the grassroots, and that devolution was never intended to create exclusive geographical enclaves for county governments.
On the doctrine of separation of powers, the Court of Appeal departed from the High Court’s sweeping invalidation of the entire Act and adopted a more restrained and precise approach. While the appellate court agreed that one aspect of the law was unconstitutional, it rejected the argument that the entire statutory framework was fatally flawed.
The court found that section 43(9) of the NG-CDF Act, which linked the term of office of the Fund Manager to the term of Parliament and election-related transitions, violated the principle of separation of powers.
However, rather than striking down the entire Act, the Court of Appeal applied the principle of severability, holding that the unconstitutional portion could be removed without impairing the functionality of the statute.
“The High Court was wrong to invalidate the entire NG-CDF Act, 2015, when the impugned provision could be severed without collapsing the statute.”
The appellate court was also critical of the High Court’s approach to public finance principles, holding that the NG-CDF Act, 2015 is not inconsistent with constitutional requirements on public finance.
The judges reiterated that courts should not invalidate legislation on the basis of hypothetical or speculative harm, citing established Supreme Court jurisprudence.
The Court of Appeal further held that the enactment of the NG-CDF Act did not require Senate participation, finding that the legislation concerns national government functions and public finance matters within the legislative mandate of the National Assembly.
In setting aside the High Court’s judgment, the appellate court ordered that each party bear its own costs, noting the public interest nature of the litigation.
The ruling provides renewed legal certainty for Members of Parliament and affirms the continued operation of NG-CDF as a national government funding mechanism.
The full judgment is available on the
Judiciary of Kenya website
This article was prepared by the Ramsey Focus Analysis Desk, based on verified reports, independent analysis, and insights to ensure balanced coverage.
