Frakheart J Ddaiddo & 1 other v Tana River County Ward Bursary Fund Board . 1st Respondent County Assembly of Tana River & 2 others

administration or delivery of service as if the member were an officer or employee of the County Government. 2. d. A declaration that Section 13 (3) and (4) of Tana River County Ward Bursary Fund Administration Act No.2 of 2014 offends the provisions of the Constitution of Kenya 2010 and violates the principles of oneness and accountability as provided for under Article 201 (a) of the Constitution of Kenya 2010. e. A declaration that Section 13 (3) and (4) of Tana River County Ward Bursary Fund Administration Act No.2 of 2014 are unconstitutional since they offend the principles of leadership provided for under Act 73(a) of the Constitution of Kenya 2010. f. A declaration that Section 13 (3) and (4) of Tana River County Ward Bursary Fund Administration Act No.2 of 2014 offends the provisions of Section 8(i)(a),9(2)(a) and (b) and Section 61(3) of the County Government Act 2012. g. A permanent order of injunction barring the Ward Bursary Fund Committee from convening, sitting or deliberating or conducting any business in respect to the Ward Bursary Fund Committee until a proper legislation is put in place outlining the qualifications, disqualifications and actions of patron. h. A permanent order of injunction barring the MCAs from sitting and/or presiding or directing the activities of the Ward Bursary Fund Committee and/or committee tasked with administration of Ward Fund or any other entity tasked with admiration of any funds. i. A permanent order of injunction barring the MCAs from establishing any Fund whereby they will directly or indirectly sit, convene, chair and/or direct the meetings or in any way be involved in the management, disbursement and/or allocation of the said fund or kitty. j. This Honourable Court be pleased to issue an order that the respondents, jointly and severally bear the costs of this suit. The Petitioners are challenging the constitutionality of section 13 (3) and (4) of the Tana River County Ward Bursary Fund Administration Act 2014 (herein referred to as the Act) as amended in 2018. Section 13 provides as follows: 13(1) There shall be established a Ward Bursary Committee in respect of each ward. (1A) A committee established under subsection (1) shall consist of – ……………………… (a) – (d) 3. (2) The ward office manager shall be the secretary to the committee. (3) The ward representative shall be the patron of the committee. (4) The committee shall elect the chairperson in its first meeting convened by the patron. (5) …………….. The petitioners argue that section 13 (3) and (4) of the Act are unconstitutional in that they violate the doctrine of separation of powers as provided under Article 174(i) and 175(a) of the Constitution of Kenya, 2010 and contravenes the provisions of section 9(2) (a) and (b) of the County Governments Act, 2012. They argue that the main roles of MCAs as provided by Article 177(1) (a) and 185 of the Constitution of Kenya, 2010 is to legislate and oversight the executive. That the impugned provisions create conflict of interest when MCAs sit as patron and Chair of the Fund Committee and at the same https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 2

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time sit as a member of the oversight select committee established pursuant to Part VIII of the Tana River County Government Act No.2 of 2014. They argue that the provisions violate the principles of openness, accountability and the principles of leadership. 4. The 1st Respondent, Tana River County Ward Bursary Fund Board and the 3rd Respondent, The Office of the Governor, Tana River County, supported the petition while the 2nd Respondent, The County Assembly of Tana River, opposed the petition. 5. The petition was argued by way of written submissions of the respective counsels appearing for the parties. Petitioners` Submissions 6. The issue for determination according to the Petitioners was whether sections 13(3) and (4) of Tana River County Ward Bursary Fund Administration Act No.2 of 2014 is unconstitutional for violating the doctrine of separation of powers, conflict of interest, doctrine of openness and accountability and constitutional principles of leadership. 7. The Petitioners submit that Article 1(3) of the Constitution of Kenya, 2010 provides for separation of powers between the national government and the county governments. That Article 185(1) of the constitution bestows the county Assembly with power to legislate while Article 179(1) bestows the executive power at the county level on county executive. That Chapter 11 of the constitution of Kenya 2010 provides for devolved governments with Article 174 making a provision for the objects of devolution, which are: 174. the objects of the devolution of government are – (a) to promote democratic and accountable exercise of power…. (i) 8. to enhance checks and balances and the separation of powers. That the doctrine of checks and balances are further provided for in Article 175(a) provides that: County governments established under this constitution shall reflect the following principles – (a) county governments shall be based on democratic principles and the separation of powers. 9. It was submitted that the separation of powers refers to the notion of separating power between the three arms of government, that is, the legislature, the executive and the judiciary. That these arms of government are independent abeit they work in harmony and that at the same time enhancing the doctrine of checks and balances. 10. According to the Petitioners, the constitution of Kenya 2010 contemplated for a functional separation of power as provided in Article 174(i) and 175(a) which denotes that one branch of the government does not perform the function of another branch. Reliance in this respect was placed in the case of Institute of Social Accountability & another v National Assembly and 4 others (2015) KEHC 6975 (KLR) where the court held that: The principle of separation of powers is at the heart of the structure of our government; each organ is independent of each other but acting as a check and balance to the other and also working in concert to ensure that the machinery of the state works for the good of Kenyans. The Apex Court in the In the Matter of the Interim Independent Electoral Commission (supra) expressed itself as follows; The effect of the Constitution’s detailed provision for the rule of law in processes of governance, is the legality of executive or administrative actions to be determined by the Courts, which are independent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 3

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of the Executive branch. The essence of separation of powers, in this context, is that the totality of governance powers is shared out among different organs of government, and that these organs play mutually- countervailing roles. In this set up, it is to be recognized that none of the several government organs functions in splendid isolation. 11. Reference was also made on Institute of Social Accountability & another v National Assembly and 5 others (Petition 1 of 2018) (2022) KEHC 39 (KLR) (8 August 2022) (Judgment) where the Supreme Court of Kenya adopted a two-thronged approach in assessing whether there is unconstitutional intrusion that threatens separation of power and the court held that: Given the foregoing analysis, we now adopt a two-pronged test to be used in assessing whether a particular allocation of mandate, function, or power to a public agency or institution amounts to an unconstitutional intrusion that threatens or violates the separation of powers. The two limbs of the test are: a. Whether the mandate, functions or powers of the subject state agency, or institution unjustifiably strays into the nucleus, core functions, or pre- eminent domain that are the exclusive competence of another branch of government from a functional point of view? And b. Whether the exercise of the subject assigned mandate, functions, or powers will harm or threaten the realization of the national values and principles articulated in the Constitution? 12. The petitioners submitted that the functions of the Bursary Fund Ward Committee as stipulated in section 16 of Part VIII of the Act of 2014 are, first, to receive, vet and approve the bursary applications and recommend deserving cases to the bursary board and secondly, to ensure fair and equitable distribution of bursary at the ward level. 13. It was submitted that the Ward Bursary Fund Committee established under section 13 (1) provides under sub section (3) that the ward representative shall be the patron of the Committee and subsection (4) provides that the patron shall convene the first sitting of the committee. It was thus submitted that the Committee cannot convene the first sitting in the absence of the Member of County Assembly (MCA). 14. That the section indicates that the MCA sits in the Committee not just as an observer/overseer but as member and actively engages in the deliberations of the meetings of the Committee. That by his mere presence, the MCA is capable of influencing the vetting and approval of bursary due to the power and influence they hold in their capacity as MCAs. 15. It was submitted that in essence the MCA sits in the Committee meeting established by the executive arm of the Tana River county Government. That in the absence of the MCA to convene the first Committee, the Committee function shall come to a standstill. That this scenario violates the dictates of Article 10 (2)(c) on good governance, transparency and accountability in that MCAs are expected to oversight the executive arm of the government and cannot do so when they sit in the bursary committees as patrons and members. 16. It was submitted that this contravenes the principle of “Nemo judex in causa sua”, that is, no man shall be a judge in his own cause and in that way the Act contravenes the principle of separation of powers. The Petitioners in this respect placed reliance on the Institute of Social Accountability case (supra) where the High Court held that: 132.In light of the specific grant and definition of legislative powers under the provisions of articles 95 and 96 of the Constitution, we find that the involvement of the Members of Parliament in the CDF implementation violates the core principle of separation of powers and to this extent, the CDF https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 4

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Act is unconstitutional. We will also add here that, to the extent that the Act conflates the executive and legislative functions, it obfuscates accountability mechanism envisaged under the Constitution underpinned by the doctrine of separation of powers. In that respect, the Act violates key national values and principles enunciated under article 10 of the Constitution, to wit, good governance and accountability and we so find. 17. The court in the same case further held that: 133. 18. Besides, the Constitution has set up mechanisms of ensuring that the county executive performs their constitutional functions. At the county level, under article 185(3) of the Constitution, the County Assembly exercises oversight over the County Executive committee and any other executive organs of the county. At the national level, under the provisions of article 96(1) of the Constitution, the Senate represents the counties at the national level and serves to protect the interests of the counties and their governments. The Senate also has an oversight role over the county resources allocated to the counties from the National Government. Articles 190(3) of the Constitution provides for intervention by the National Government in a County Government if the latter is unable to perform its functions or does not comply with a system of financial management set under the Constitution. It was submitted that MCAs are the equivalent of MPS in the National Assembly and they should therefore not indulge in the functions of committees of the county that entail vetting and allocation of bursary nor should they convene any meeting of such committee. Reliance was placed in the Institute of Social Accountability case where the court held that: Members of Parliament had a specific and clearly defined role under the Constitution. That role did not include involvement bodies whose functions entailed co-coordinating, project approvals or actual implementation of projects as those functions were executive in nature. It was also untenable to permit Senators, who were charged with the constitutional role of oversight over county resources from the national government to the county government, to convene and chair County Project Committee as established under Part VII of the CDF Act. 19. The Petitioners urged the court to allow the prayers sought in the petition with costs. 1st and 3rd Respondents` Submissions 20. The 1st and 3rd Respondents, i,e, the Tana River County Ward Bursary Fund Board and the Office of the Governor Tana River County, submitted that section 13(4) of the Act bestows the MCA as the patron of the ward committee with the sole mandate of convening the first meeting of the committee and sits in the committees as patron. That this in essence means that the MCA has an active role to play in the transaction of the Bursary Fund Committee as without the MCA convening the first meeting, the committee cannot conduct its business. That this violates the doctrine of separation of powers between the county executive and the county assembly. 21. It was submitted that the involvement of the MCAs in the day-today activity of the bursary committees conflates their oversight role as they end up playing the role of the executive and the legislature at the same time. That the MCAs are expected to oversight the administration of the bursary fund as such their sitting in the committees of the bursary fund defeats the logic and purpose of the doctrine of separation of powers. The Respondents in this respect cited the holding in the High Court in the Institute of Social Accountability case (supra) in paragraph….. above that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 5

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The principle of separation of powers is at the heart of the structure of our government; each organ is independent of each other but acting as a check and balance to the other and also working in concert to ensure that the machinery of the state works for the good of Kenyans. 22. It was submitted that the MCAs as elected leaders with the role of overseeing and checking the excess of the executive and at the same time sitting in the very executive committees they are required to oversee produces a situation where MCAs become judges over their own case which is against the rules of natural justice and gives rise to conflict of interest. 23. It was submitted that all matters regarding the management and administration of Ward Bursary Fund is a preserve of the 1st Respondent pursuant to sections 5 and 7 of the Act and the intrusion by MCAs offends the doctrine of separation of powers and defeats the essence of devolution of power. 24. The 1st and 3rd Respondents made reference to section 9(2) of the County Governments Act which provides that: A member of county assembly shall not be directly or indirectly involved in the: - 25. (a) executive function of the county government and its administration or (b) delivery of services as if the member was an officer or employee of the county government. It was submitted that the impugned section undermines devolution, causes conflict between the arms of county government – the executive and the county assembly. That failure to observe the principle of separation of powers violates the principle of accountability, would promote conflict of interest and compromise the oversight role of the county assembly, as was explained by the Supreme Court in the case of Institute of Social Accountability case (supra). Further reliance was placed in the holding in the case of Gikonyo & another v National Assembly of Kenya and 4 others; Governors and 3 others (Interested Parties) (Constitution Petition 178 of 2016) (2024) KEHC 10886 (KLR) (Constitution and Human Rights) where the High Court while declaring the CDF Act unconstitutional held that: We further note that even though the CDF (Amendment) Act, 2013 provides that the monies under the Act shall be considered as funds allocated under article 206 (2) (c), under Section 10 of the CDF Act 2013, the Cabinet Secretary in allocating the fund for each financial year must seek concurrence of the relevant Parliamentary Committee. This clearly violates the principles of accountability and integrity due to likely conflict of interest. This is because a Member of Parliament cannot oversee the implementation or coordination of the projects and at the same time offer oversight over the same projects. To this end, we find that the CDF as structured under the CDF Act 2013 violates the constitutional principles on public finance, particularly the principle of prudent and responsible management of public funds as enshrined in article 201(d) of the Constitution …. 26. For the foregoing reasons, the 1st and 3rd Respondents urged the court to declare the impugned sections as unconstitutional and grant the prayers sought in the petition. 2nd Respondent`s submissions 27. The 2nd Respondent submitted that the onus of proving the unconstitutionality of sections 13 (3) and (4) of the aforesaid Act was on the Petitioners. That there is a constitutional presumption that laws enacted by a legislative body are constitutional. Reliance in this respect was placed in the case of Ndyanabu v Attorney General (2001) EA 495, where the court held that: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 6

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There is a general presumption that every Act of parliament is constitutional and the burden of proof lies on the person who alleges otherwise. 28. It was submitted that where the constitution has allocated specific functions to an organ of state such as legislative powers, the judiciary must exercise restraint and allow the organ to discharge its mandate. That judicial intervention can only be warranted when it is demonstratively shown that the legislative organ has acted in violation of the constitution or in a manner so irrational or perverse that it cannot be allowed to stand. The 2nd Respondent in this respect cited the case of Justus Kariuki Mate v Martin Nyaga Wambora & another (2017) eKLR where the court held: From the facts of this case, it is clear to us that the integrity of court orders stands to be evaluated in terms of their inner restraint, where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. Such restraint, in the context of express mandateallocation under the Constitution, is essential, as a scheme for circumventing conflict and crisis, in the discharge of governmental responsibility. No governmental agency should encumber another to stall the constitutional motions of the other. The best practices from the comparative lesson, signal that the judicial organ must practice the greatest care, in determining the merits of each case. 29. Further reliance was placed int the Supreme court decision in Speaker of Senate & another v Attorney General & others (2013) eKLR where it was held that: The court will not question each and every procedural infraction that may occur in either of the Houses of Parliament. The court cannot supervise the workings of Parliament. The constitutional comity between the three arms of government must not be endangered by the unwarranted intrusions into the workings of one arm by another. 30. It was consequently submitted that the judiciary while exercising its constitutional mandate must at all times act with restraint so as to ensure that it does not interfere with the role of legislature. That in the present case, section 13(3) and (4) of the relevant Act merely designates the MCA as the patron of the Ward Bursary Committee and assigns them a limited ceremonial role of convening the first meeting. That the section does not confer the MCAs with any voting rights, decision making authority or any executive power. Therefore, that no breach of constitutionality process has been demonstrated and the impugned section is not unconstitutional. 31. It was submitted that the doctrine of separation of powers does not prohibit all forms of interaction between arms of government, rather, as the Supreme Court observed in Commission of for Implementation of the Constitution v Parliament of Kenya & another (2013) eKLR that: The doctrine must be applied with caution… some overlap is inevitable in a functional democracy. 32. The 2nd Respondent further submitted that the petition does not meet the threshold for a constitutional petition as set out in the case of Anarita Karimi Njeru v Republic(1979) KLR and Mumo Matemo v Trusted Society of Human Rights Alliance, Attorney General, Minister of Justice and Constitutional Affairs, Director of Public Prosecutions, Kenya Section of the International Commission of Jurists and Kenya Human Rights Commission (2013) KEHC 445 (KLR) where the court held that constitutional petitions should be pleaded with reasonable degree of precision of that of which is complained of, the provisions said to be infringed and the manner in which they are alleged to be infringed. That this has not been complied with in this petition and only contains generalized allegations of constitutional breach without linking specific actions of the county assembly or individual MCAs to the alleged violations. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 7

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33. It was submitted that the alleged constitutional violations were not proved. That matters regarding the management and administration of the Ward Bursary Fund is vested in the Bursary Board pursuant to the provisions of sections 5 and 7 of the Act. That the role of the MCA as patron is ceremonial and does not amount to membership of the committee. That the interpretation of section 13 of the Act to the contrary is misleading as the role of the MCA is limited to oversight as contemplated under Article 185 (3) of the Constitution and section 22 of the Act. 34. It was submitted that there is no evidence that MCAs exercise undue influence over the bursary process or that their patronage compromises the independence and autonomy of the Ward Bursary Committee as they do not under the Act appoint or vet committee members, do not review or approve bursary application and do not supervise or implement bursary distribution. That the MCA`s limited role in convening the first meeting fosters community ownership without breaching the constitutional requirement of separation of powers. 35. This court was urged to find that the alleged constitutional violations were not proved and therefore that the impugned section is not unconstitutional. Analysis and determination 36. The Petitioners are challenging the constitutionality of sections 12 (3) and (4) of the TRCWB Fund Administration Act No.2 of 2014. That being a matter touching on the interpretation of the Constitution, it is first proper to highlight the principles applicable in such an interpretation. The Supreme Court in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014]eKLR) stated as follows: “ (137) This, in our perception, is an interpretive conundrum, that is best resolved by the application of principle. This Court has in the past set out guidelines for such matters of interpretation. Of particular relevance in this regard, is our observation that the Constitution should be interpreted in a holistic manner, within its context, and in its spirit. In the Matter of the Kenya National Human Rights Commission, Sup. Ct. Advisory Opinion Reference No. 1 of 2012;[2014] eKLR, this Court [paragraph 26] had thus remarked: “…But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the Constitution in context. It is the contextual analysis of a constitutional provision, reading it alongside and against other provisions, so as to maintain a rational explication of what the Constitution must be taken to mean in light of its history, of the issues in dispute, and of the prevailing circumstances. Such scheme of interpretation does not mean an unbridled extrapolation of discrete constitutional provisions into each other, so as to arrive at a desired result.” 37. Also important in interpreting the constitution is the general principle of presumption that every Act of Parliament is deemed constitutional. This principle was captured by the Court of Appeal of Tanzania in Ndyanabo vs. Attorney General [2001] EA 495 being a restatement of the law in the English case of Pearlberg vs. Varty [1972] 1 WLR 534 that: “ Until the contrary is proved, legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, legislation should receive such a construction as will make it operative and not inoperative” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 8

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38. I will therefore bear these principles in mind in interpreting the challenged provisions. 39. Section 13 of the impugned Act establishes a Ward Bursary Committee in respect of every ward in Tana River County. Sub section 3 of that section designates the ward representative as the patron of the Committee while subsection 4 provides that: “ The committee shall elect the chairperson in its first sitting convened by the patron”. 40. The Petitioners and the 1st and 3rd Respondents argue that the designation of the ward representative as the patron of the committee with power to convene the first meeting of the committee or to sit in the committee as patron or member contravenes the County Governments Act 2012 which prohibits Members of County Assemblies from acting as employees or staff of county governments. That the role of a Member of County Assembly is to legislate and to oversight the county executive. That makes the MCAs conflicted since they cannot oversight the fund they are managing or controlling. That the double mandate interferes with the doctrine of separation of powers, accountability and good governance. 41. The 2nd Respondent on the other hand argue that the ward representatives are not members of the ward committees and are not involved in the management of the fund. That they are best suited to convene the first meeting since they are representatives of the people at the ward level. That after convening the first meeting the role of the ward representative expires. 42. The Constitution of Kenya 2010 distributes power at the county level between the legislature and the county executive. The doctrine of separation of powers denotes that one branch of government should not ideally interfere with the powers conferred in another branch of government. 43. The mandate of a ward representative is to legislate at the county level and to oversight the county executive. The role of the executive at the county level is to govern the county and to implement programmes in the county. 44. The Petitioners argue that the designation of the ward representative as a patron of the ward fund committee interferes with the mandate given by the constitution to the county executive. 45. The test on whether the designation of a ward representative as a member of the ward Committee will interfere with the mandate of the county executive was set out by the Supreme Court in the case of Institute for Social Accountability & another v National Assembly & 5 others (supra) that; 46. 1. If the mandate unjustifiably strays into the nucleus, core functions, or pre-eminent domain that are the exclusive competence of another branch of government from a functional point of view. 2. Whether that the exercise of that mandate, function or power will harm or threaten the realization of the national values and principles articulated in the constitution. In the first place the designation of the ward representative as patron of the ward Committee interferes with the doctrine of separation of powers. In the Institute for Social Accountability case (supra), the Supreme Court observed that: The idea of separating the functions and personnel of the three branches of government is intended to give effect to the related concept of ‘checks and balances’ which is linked to the constitutional principles and values of accountability and good governance. This ensures that a branch can oversight the discharge of the mandate by a different branch thereby https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 9

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providing restraint on the exercise of public power, for example, the Legislature should oversight the discharge of functions by the Executive branch. 47. The ward fund in this case is established by the county executive and disperses funds appropriated by the county executive as bursary funds. Since the ward representative has the mandate to oversight the funds expended by the county executive, it creates a clear case of conflict of interest when the ward representative sits in a committee of the county assembly to oversight funds for which he/she is the patron. There will be little check and balance in this sort of scenario. 48. Secondly, the same interferes with the national values of democracy, accountability, good governance and devolution as stipulated in Article 10 of the Constitution of Kenya 2010. The act of the ward representative convening the first meeting of the committee amounts to participating in the management of the fund which is created to offer services to the residents of the county. This again interferes with the doctrine of separation of powers between the county executive and the county assembly. It also interferes with the principle of accountability and good governance when the ward representative purports to oversight the same fund he/she participated in managing. There is all likelihood of the ward representative influencing the decisions of the meeting when he convenes the first meeting of the committee. More so, the Act does not bar the ward representative as patron of the committee from attending its subsequent meetings. 49. In the Institute for Social Accountability case (supra), the Supreme Court stated that: 130. It will also naturally follow that given the constitutional scheme on separation of powers; Members of legislative bodies, being Members of the National Assembly, Senators, County Women Representatives, and Members of County Assemblies ought not to be involved in the implementation of any service- based mandates which are a preserve of the Executive branch. This is the only way to respect the constitutional scheme on separation of powers and ensure that the Legislators’ oversight mandate is not compromised through conflict of interest. Tolerating a contrary position would harm the Constitution’s value system, particularly the national values and principles of accountable and good governance. 50. The 2nd Respondent argued that the role of the ward representative in the scheme of the ward fund is only that of a patron and does not sit as a member of the committee. 51. The role of the ward representatives is similar to that of members of the national assembly. The Court in the afore mentioned case held as follows in respect of conflict of interest by members of parliament in regard to Constituency Development Fund: 128. Given the constitutional edict in article 259(1)(a) and (d) that the Constitution should be interpreted in a manner that promotes its purposes, values, and principles, and contributes to good governance; it is our view that adopting an interpretation that allows conflict of interest undermines the oversight role of the Legislature. It follows that allowing Legislators any role, even a merely ceremonial role in discharging a mandate that belongs to the executive branch at either the national or the county level, would promote conflict of interest and compromise their oversight role. Therefore, it follows that the CDF Act 2013 violates the values and principles of accountability and good governance. 52. It is then clear that the impugned sections violate the doctrine of separation of powers. 53. Section 9 of the County Governments Act stipulates the role of the members of the county assembly. Subsection 2 provides as follows: 9. Role of members of the county assembly https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 10

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(2) A member of the county assembly shall not be directly or indirectly involved in the— (a) executive functions of the county government and its administration; or (b) delivery of services as if the member were an officer or employee of the county government. 54. The designation of the ward representative as patrons of ward fund as patrons is a clear involvement of the ward representative in the executive functions of the county government and its administration. His role to convene the first meeting of the committee is an involvement in service delivery which is solely a mandate of the county government. Consequently, I find that the impugned sections are in contravention of section 9 (2) of the County Governments Act No.2 of 2014. 55. The Act also offends the principles of leadership provided in Article 73(a) of the Constitution of Kenya 2010. 56. Having considered the issues raised in the Petition, I find the impugned Act to be ultra vires the Constitutional of Kenya, 2010, null and void. The Orders sought in the Petition are therefore allowed as prayed in Prayers (a) to (j) of the Amended Petition dated 1st October 2024. 57. The Petitioners to have the costs of the Petition. DELIVERED, DATED AND SIGNED AT GARSEN THIS 30TH DAY OF APRIL 2026 J. N. NJAGI JUDGE In the presence of: Mr. Mureti for Petitioners Mr. Orina for 1st and 3rd Respondents Miss Timna for 2nd Respondent Court Assistant - Mwero https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6360/eng@2026-04-30 11

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