Njenga v National Assembly of Kenya & 3 others (Civil Appeal 266 of 2019) [2025] KECA 2037 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a challenge to how the Judiciary is funded, confirming the Constitution guarantees no minimum budget allocation for courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether, following the appellant's concession that his challenge to the Appropriation Act, 2018 was overtaken by events, the remaining issues relating to the funding of the Judiciary were moot
- 2.Whether the Judiciary Fund Act, 2016 is unconstitutional for failing to specify a guaranteed or predictable allocation to the Judiciary Fund
- 3.Whether there was adequate public participation in the enactment of the Appropriation Act, 2018
- 4.Whether the trial court erred in failing to address the underfunding of the Judiciary and in failing to determine all issues placed before it
Key legal issues
#Mootness of the challenge to the Appropriation Act, 2018 and of the underfunding claim
The appeal was moot. The appellant conceded that the challenge to the Appropriation Act, 2018 had been overtaken by events, and the underfunding claim was inextricably tied to that Act. Subsequent enactment of the Judiciary Fund Regulations and operationalisation of the Fund in 2022 further altered the case.
The court held that adequacy of funding cannot be assessed without inquiring into the Appropriation Act, 2018; once that challenge fell away, no evidential basis remained for inquiring into budgetary allocation. The court took judicial notice of the Judiciary Fund Regulations (Legal Notice No. 33 of 2019) and the operationalisation of the Fund in 2022, adopting the justiciability principles in Wanjiru Gikonyo on mootness and ripeness.
Constitutionality of the Judiciary Fund Act, 2016
The Act is not unconstitutional. Article 173 contains no guaranteed minimum allocation, and the Constitution-making process deliberately omitted the recommended 2.5% allocation. Section 3 of the Act, setting out the Fund's objectives, does not violate Article 173.
The court examined Article 173 and section 4 of the Act, noting the appellant had not alleged unconstitutionality in the provisions on sources and administration of the Fund. The Ouko Taskforce recommendation for 2.5% of the national budget was not adopted in the Constitution, so Parliament cannot be faulted for omitting a minimum allocation; the presumption of constitutionality, relying on Ndyanabo and Hamdard Dawakhana, was not rebutted.
Whether approved Judiciary budget estimates must be included in an Appropriations Bill (Article 221(6)) or paid directly into the Judiciary Fund as a charge on the Consolidated Fund (Articles 221(7) and 173(4))
The court expressly declined to determine this question, noting it raised a critical unresolved issue of constitutional interpretation suitable for a different matter and forum.
The court acknowledged the tension between Article 221(6), relied on by the National Assembly, and Articles 221(7) and 173(4), relied on by the appellant, but held that with the Appropriation Act challenge moot, the question could not be decided in this appeal. The trial court's reliance on Article 221(6) without considering Article 221(7) was noted but not adjudicated.
Legal principles established
#- A court will decline to determine an issue that no longer presents a live controversy; where the subject matter of a constitutional challenge is overtaken by events, claims premised on it become moot
- Article 173 of the Constitution does not prescribe a specific or minimum financial allocation to the Judiciary; Parliament was not required to fix an upfront percentage in the Judiciary Fund Act
- A first appellate court has a duty to analyse and evaluate the evidence and pleadings before the trial court and reach its own conclusion
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Constitutional Petition dated 25th July 2018
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court's determination of the constitutional petition
Relief refused
#Declaration that the Appropriation Act, 2018 is unconstitutional
Appellant conceded the challenge was overtaken by events as subsequent Appropriation Acts had been passed
Declaration that the Judiciary Fund Act, 2016 is unconstitutional for failing to provide a guaranteed allocation
No constitutional provision requires a minimum percentage; the Ouko Report's 2.5% recommendation was not adopted in the Constitution; presumption of constitutionality not rebutted
Determination of whether the Judiciary's approved budget must be included in an Appropriations Bill or paid directly into the Judiciary Fund as a charge on the Consolidated Fund
The question was incapable of determination in this appeal given the mootness of the Appropriation Act challenge
Costs
Appeal dismissed, with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Once the issues pertaining to the Appropriation Act, 2018, are overtaken by events, everything else premised on it becomes moot.
A reading of the constitutional provisions relating to the establishment of the Judiciary Fund does not indicate a specific financial commitment, such as a minimum percentage of the national budget, for the Judiciary.
no minimum allocation was accepted and included in the Constitution, and the trial court did not, therefore, err in not granting the orders sought with respect to the constitutionality of the Judiciary Fund Act
That, however, is a matter for consideration in a difierent matter and a difierent forum.
Accordingly, the appeal is hereby dismissed, but with no order as to costs.
Issues in the judgment
#The judgment states the 2nd respondent (JSC) and 4th respondent (Controller of Budget) were joined as the 1st, 2nd and 3rd Interested Parties, which is arithmetically inconsistent and does not match the later reference to three interested parties
The judgment states at paragraph 13 that the High Court dismissed the petition without addressing the appellant's underfunding contentions, but the 1st respondent asserted the trial court found the issue lacked merit, and the court of appeal did not resolve this contradiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga v National Assembly of Kenya & 3 others (Civil Appeal 266 of 2019) [2025] KECA 2037 (KLR)", Case Analysis (2025). Civil Appeal (petition-based appeal arising from High Court Constitutional Petition dated 25th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2037/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.