The organisations — The Institute for Social Accountability (TISA) and Centre for Enhancing Democracy and Good Governance — argue that the appellate court erred by failing to find that the CDF Act and the later amendment to the Act by Parliament is unconstitutional as it offends the principles of public finance, division of revenue and the division of functions of the national and county governments.

Although Judges Erastus Githinji, Hannah Okwengu and GBM Kariuki found that CDF Act offends the principle of separation of powers, they said it was improbable that CDF would interfere with county governments’ planning or autonomy.

The three judges ruled that contrary to the finding of the High Court, the administration of the fund, management and implementation of the projects is done by the national government through the agents established by the Act, who are not in law third entities.

ALIGN WITH CONSTITUTION

• The High Court had found the Act establishing CDF illegal but suspended the law for one year to allow Parliament to align it with the Constitution.

Parliament later filed an appeal, and partially succeeded.

The two organisations, through lawyer Waikwa Wanyoike, want the Supreme Court to issue a declaration that numerous provisions of the CDF Act, 2013 are unconstitutional, which cumulatively renders the Act untenable and, therefore, unconstitutional.

In their decision, the three judges said that CDF is not an additional allocation to county governments but a national fund established by national legislation which straddles all constituencies and which complements the development efforts by national and county governments.

“The fact that the CDF scheme services may cause an overlap of functions does not ipso facto bring the CDF services within the administration of the county governments,” the judges said.

By SAM KIPLAGAT, Daily Nation Newspaper, Thursday 4th January, 2016