Unconstitutionality of CDF – Judgment by the Court of Appeal


On 3rd February, 2013, The Institute for Social Accountability (TISA), 1st respondent, filed Petition No. 71 of 2013 in the High Court, Nairobi, alleging that the Constituency Development Fund Act, 2013 (CDFA) was in breach of the Constitution for various reasons, and sought injunctive orders to restrain disbursement of Kshs. 10.1 billion to Constituency Development Fund Board and various declarations.

On 10th May 2015, the Centre for Enhancing Democracy and Good Governance (hereinafter referred to as CEDGG) filed a constitutional Petition No. 16 of 2013 in the High Court at Nakuru, alleging that the CDFA was unconstitutional and sought reliefs, inter alia, for striking down of the Act for being unconstitutional. The Nakuru petition was later transferred to Nairobi and consolidated with the Nairobi Petition. On 2nd August 2013, the Chairperson of Constituency Development Fund Committee – Mr. Moses Lessonet caused to be published the Constituency Development Fund (Amendment) Act – No. 36 of 2013 which commenced on 1st October, 2013. Thereafter the petitioners filed an amended petition in the consolidated petitions.

The High Court – Constitution and Human Rights Division (Lenaola, Mumbi Ngugi & Majanja, JJ.) issued a judgment that led to the filing of the appeal, which judgment was in thefollowing terms:

(a) A declaration is hereby issued that the Constituencies Development Fund Act, 2013 is unconstitutional and therefore invalid.

(b) The order of invalidity above is suspended for a period of twelve (12) months from the date of judgment.

(c) The National Government may remedy the defect within that period and the Constituencies Development Fund Act shall stand Judgment–CA 92.015 3 invalidated at the expiry of the twelve (12) months or may be earlier repealed whichever comes first.

(d) Each party shall bear its own costs.

The Court of Appeal decision was by Justices Githinji, Okwengu and G.B.M Kariuki  and you can click on this link to read the judgment of the Court of Appeal