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Court of AppealPartially AllowedCourt of Appeal Civil Appeals consolidated (from High Court Petition No. 71 of 2013 and Petition No. 16 of 2013)· [2017] KECA 170 (KLR)

National Assembly of Kenya & another v Institute for Social Accountability & 8 others (Civil Appeal 92 & 97 of 2015 (Consolidated)) [2017] KECA 170 (KLR)

Court of Appeal of Kenya
24 November 2017
EGE. M. GithinjiHOH. M. OkwenguGKG. B. M. Kariuki
15,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal saved the CDF law, ruling only that MPs cannot run fund projects themselves because that mixes legislative and executive roles.

What this practically means

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Executive summary

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This Court of Appeal judgment (Githinji, Okwengu & G.B.M. Kariuki, JJA) determined two consolidated appeals by the Constituency Development Fund Board and the National Assembly against the High Court's declaration that the Constituency Development Fund Act, 2013 was unconstitutional in its entirety. The court first dismissed the respondents' preliminary objection on mootness, holding that the enactment of the National Government Constituency Development Fund Act, 2015 did not render the appeals moot because the statute had not been expressly repealed, its provisions had been substantially re-enacted, and the appeal raised questions of great public interest and constitutional magnitude. On the merits, the court reversed most of the High Court's findings. It held that the Fourth Schedule's distribution of functions is not exclusive and that the national government may lawfully perform CDF-type services within county administrative structures; that the CDF committees are national government service delivery units, not an unlawful third entity; that the CDFA does not offend public finance principles, the objection to section 4(1)(a) being hypothetical; and that the CDF (Amendment) Bill did not require Senate passage, the Speakers' resolution deserving deference. It further observed that, save for the separation of powers question, the disputes were not ripe and raised political questions that should have been channelled through inter-governmental dispute mechanisms. The court retained only one finding of unconstitutionality: sections 24(3)(c), 24(3)(f) and 37(1)(a) violate separation of powers by appointing Members of Parliament and elected leaders to executive roles, and those sections were struck down, the rest of the Act being severable. Each party was ordered to bear its own costs.

Key legal issues

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01

Mootness following intervening legislation

Holding

The appeal was not moot: the CDFA 2013 ceased to operate by court order, not by voluntary repeal, its provisions were substantially re-enacted in the NGCDFA 2015, and the appeal raised issues of great public interest and constitutional magnitude.

Reasoning

The court drew on Canadian, US, South African and Philippine authorities to hold mootness is a functional doctrine founded on judicial economy and the functional competence of courts. A court may determine an otherwise moot case where there is recurrence, continuing uncertainty, public interest and questions of constitutional magnitude requiring controlling principles.

p. 10
02

Division of functions between national and county governments

Holding

The High Court erred in finding sections 3 and 22 of the CDFA unconstitutional. The Fourth Schedule does not demarcate exclusive functions; CDF functions may fall within concurrent jurisdiction and national legislation prevails under Article 191.

Reasoning

The High Court never made a definitive finding that CDF projects were exclusively county functions, calling such a classification premature. Article 186(2) permits concurrent functions, Article 186(4) allows Parliament to legislate on any matter, and the CDF Board approves projects under section 17(2) before any violation can be concluded.

p. 15
03

Whether CDF is a third entity parallel to constitutional structures

Holding

The CDF Committee and project management committees are national government service delivery units established under section 24 of the PFMA; they are not unlawful third entities.

Reasoning

The national government may decentralise services through statutory agents. The Cabinet Secretary may establish the Fund under section 24(4) PFMA and designate a person to administer it under section 24(5). Community-based committees fit the description of national government service delivery delivery units and reflect devolution's participatory principles.

p. 17
04

Public finance and division of revenue

Holding

The CDFA does not offend the principles of public finance or division of revenue; the claim that 2.5% is extracted before the 15% equitable share was hypothetical and unproven.

Reasoning

Equitable sharing is effected through the Division of Revenue Bill and Act, which precedes all other statutory allocations. It was not shown empirically that counties received less than their constitutional share in 2013/2014 or any later year. Section 4(1)(a), though not a model of clarity, is not unconstitutional in effect.

p. 20
05

Role of the Senate in the CDF (Amendment) Bill

Holding

The High Court erred: the Amendment Bill did not concern county government, the Speakers had resolved that question, there was no dispute between the Houses, and the Senate had no role in the original CDFA enacted under the repealed Constitution.

Reasoning

The court should have independently assessed the Amendment Bill's provisions rather than importing the (now reversed) findings on the parent Act. The Speakers' resolution is a constitutional condition precedent deserving deference, and absent inter-House controversy the court usurped the role of competent legislative institutions.

p. 23
06

Separation of powers

Holding

Sections 24(3)(c), 24(3)(f) and 37(1)(a) of the CDFA are unconstitutional: the MP controls the CDF Committee and performs executive duties, and county projects committees of elected leaders are similarly unconstitutional; but the National Assembly Select Committee's oversight role under section 28 is valid.

Reasoning

The MP appoints eight of ten committee members and is a voting ex-officio member, influencing selection, prioritisation, allocation and monitoring of projects - executive functions. However, separation of powers is not absolute; there is nothing in the Constitution or Leadership and Integrity Act restricting an MP from involvement in development activities in his constituency.

p. 26
07

Ripeness, political question doctrine and constitutional avoidance

Holding

Except for the separation of powers issue, the questions raised had not reached constitutional ripeness and involved political questions that should have been resolved through the inter-governmental dispute resolution mechanisms.

Reasoning

Articles 6(2), 189 and the Inter-governmental Relations Act entrench consultation and co-operation and require exhaustion of alternative dispute resolution before judicial proceedings. TISA and CEDGG, though having locus standi under Articles 3(1) and 258, invented a hypothetical dispute in the guise of unconstitutionality of the CDFA.

p. 28

Legal principles established

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  • It is not unconstitutional for the national government to perform CDF services or implement national functions inside the administrative structures of county governments, provided the projects relate to functions allocated to the national government under the Fourth Schedule
  • The distribution of functions in the Fourth Schedule is not static, comprehensive, inflexible or exclusive; functions may be concurrent and Parliament may legislate for the Republic on any matter under Article 186(4)
  • Appointing Members of Parliament to perform purely executive duties in the administration of a fund violates the separation of powers; such functions should be performed by officers of the national government
  • Invalid provisions of a statute may be severed where the legislature would have enacted the valid provisions independently and what remains is fully operative as law
  • Where the Constitution provides institutional mechanisms (consultation, Speakers' resolution, mediation) for inter-governmental and legislative-process disputes, those mechanisms must be exhausted before the jurisdiction of the High Court is invoked
  • A statutory fund established by the national government is not a third entity merely because its administration overlaps county functions; overlap does not ipso facto bring the service within county administration

Court orders

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  1. 1.The preliminary objection on mootness is dismissed
  2. 2.The declaration that the Constituencies Development Fund Act, 2013 is unconstitutional in its entirety and invalid is set aside
  3. 3.In lieu thereof, a declaration that sections 24(3)(c), 24(3)(f) and 37(1)(a) of the Constituencies Development Fund Act, 2013 are unconstitutional and invalid for violating the principle of separation of powers, and those sections are struck down
  4. 4.The remaining provisions of the CDFA stand as severable and valid
  5. 5.Each party to the appeals shall bear its own costs of the appeals

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3(1), 6(2), 6(3), 10, 89, 93, 94(1), 95(1), 95(4)(c), 95(5)(b), 96(1), 96(2), 97(1)(a), 110(1), 110(3), 110(4), 110(5), 112(1)(a), 113, 113(4), 129(1), 159(1), 165(3)(d), 174, 176(2), 185(1), 186(1), 186(2), 186(3), 186(4), 187(1), 189, 191, 201, 202, 203(1), 203(2), 204(3)(b), 205, 206(2)(a), 206(2)(c), 206(3), 215(1)(a), 216(1)(a), 219, 221, 225, 248, 258(1), 259(1), 260, Fourth Schedule, Transitional and Consequential Provisions (Sections 2(1), 10, 11)
  • Constituency Development Fund Act, 2013Sections 3, 4, 4(1)(a), 4(1)(c), 4(2), 5, 6, 10, 17(2), 20, 22, 24(3)(c), 24(3)(f), 28, 28(5), 36, 37(1)(a), 38, 39, 42(ii), 43(ii), 47(1)
  • Constituency Development Fund (Amendment) Act, No. 36 of 2013General
  • CDF Act, 2003General
  • National Government Constituency Development Fund Act, 2015General
  • Public Finance Management Act, 2012Sections 24(2), 24(4), 24(5), 187(1), 189, 191(4)
  • County Government Act, 2012Sections 7, 48(1), 54, 105
  • Elections Act, 2011Definition of constituency
  • Inter-governmental Relations Act, No. 2 of 2015Preamble, Sections 7, 31, 35
  • National Government Co-ordination Act, No. 1 of 2015Sections 14, 15(2)
  • Leadership and Integrity ActGeneral
  • Constitution of the United States of AmericaArticle 1 Section 6, Article III Section 2(1)

Cases cited (15)

  • JT Publishing (Proprietary) Limited v Minister of Safety and Security
    1996 12 BCLR 1599
  • Legal Aid South Africa v Magidiwana and Others
    [2015] ZACC 28
  • Minister of Justice Canada v Borowski
    (1981) 2 SCR 575
  • Borowski v The Attorney General of Canada
    [1989] 1 SCR 342
  • Defunis v Odegaard
    416 US 312
  • Wanjiru Gikonyo and 2 Ors v The National Assembly of Kenya & 4 Others
    [2016] eKLR
  • Greco Antonious Bedo Belgica and four others v Honourable Executive Secretary Paquito N. Ochoa JR and two others
    GR No. 208566 consolidated with GR Nos. 208493 & 209251
  • Speaker of Senate & Another v Attorney General & 4 Others
    [2013] eKLR
  • In the Matter of the Interim Independent Electoral Commission
    [2011] eKLR
  • Re The Matter of Interim Independent Electoral Commission - application No. 2 of 2011
    [2011] eKLR
  • In the Matter of the National Land Commission - Advisory Opinion No. 2 of 2014
    [2015] eKLR
  • Buckley v Valeo
    424 U.S. 1 [1976]
  • Youngstown Sheet & Tube Co. v Sawyer
    343 U.S. 579, 635 (1952)
  • Communications Commission of Kenya & 5 Others v Royal Media Services & 5 Others
    [2014] eKLR
  • Wanjiru Gikonyo and Another v The National Assembly and 4 Others
    Petition No. 17 of 2016
On appeal from
High Court of Kenya, Constitution and Human Rights Division, Nairobi
Petition No. 71 of 2013 consolidated with Petition No. 16 of 2013
Jurisdiction invoked
First appeal against a declaration of constitutional invalidity under Article 165(3)(d) of the Constitution; appeal as of right on constitutionality findings

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "National Assembly of Kenya & another v Institute for Social Accountability & 8 others (Civil Appeal 92 & 97 of 2015 (Consolidated)) [2017] KECA 170 (KLR)", Case Analysis (2017). Court of Appeal Civil Appeals consolidated (from High Court Petition No. 71 of 2013 and Petition No. 16 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/170/eng@2017-11-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.