National Assembly v Gikonyo & 9 others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR)

The court examined the pleadings and the statutory framework and found several surviving provisions, including the National Assembly approval role and the tenure of the Fund Account Manager, still raised justiciable constitutional questions. Following the Supreme Court's approach in Institute of Social Accountability, an amendment mooting a dispute must unequivocally address the concerns at the heart of the dispute; here the core questions of parliamentary involvement and governance of the Fund persisted.

Article 6(3) entrenches subsidiarity, permitting the national government to decentralize its own structures. Section 14(1A) of the National Government Coordination Act establishes constituencies as national government service delivery units, and that statute's constitutionality was never impugned. The High Court's findings of duplication and wastage were unsupported by any factual material; the Council of Governors and Senate never raised such complaints. The Supreme Court in Senate v Speaker had confirmed section 24 confines the Fund to exclusive national government functions.

The respondents' claim that the constituency as a service delivery unit created an impermissible third level of government was anchored on the basic structure argument. Once the High Court, following Ndii, held the doctrine inapplicable, the foundation of that challenge fell away. The Court of Appeal found this inconsistency in the approach adopted below and rejected the conclusion on the merits as well.

The court treated this as disposed of by the Supreme Court's decision in Senate v Speaker, which found that section 24 of the Act restricts the Fund's operations to the exclusive functions of the national government, so the Act did not affect county functions. Bound by that decision, the Court of Appeal held the High Court erred in finding the enactment unconstitutional for want of Senate concurrence.

The Constitution does not envisage impermeable silos but structured interaction and checks and balances; parliamentary approval of appointments is a familiar constitutional mechanism. The approval processes under sections 15(1)(e) and 43(3)-(4) are checks on executive power. However, section 43(9) tethers the Fund Account Manager to the political tenure of the Member of the National Assembly, compromising independence at perception level, and is declared unconstitutional.

The High Court's premise that the Act permits expenditure across both national and county functional domains was unsustainable given section 24, which the Supreme Court in Senate v Speaker held to be the controlling provision. Section 54 must be read harmoniously with section 24. The Fund's allocation forms part of national executive expenditure estimates approved under the Appropriations Act, with audit by the Auditor-General and Assembly oversight.

Under the principle of severability, a court finding part of a statute unconstitutional must determine whether the invalid portion can be severed without defeating the statute's purpose, structure or legislative intent. Given the court's findings that the Act is otherwise constitutional, invalidating it entirely was disproportionate. The severed portion does not impair the coherence or operation of the Act.