Five petitioners among them the Council of Governors have moved to court challenging Parliament's decision to deny devolved units Sh10.5 billion from the Roads Maintenance Levy Fund.
In case under certificate of urgency, Mr Issa Elanyi Chamao, Mr Patrick Ekirapa and Mr Paul Kirui together with International Legal Consultancy Group and Council of Governors argue that the decision by National Assembly to remove county governments as beneficiaries of the levy is unconstitutional.
The petitioners said the decision has far-reaching implications on the funding of the devolved government system. Further, the decision was made without public participation or the concurrence of the senate.
"The decision promotes arbitrariness in decision making, sustains bad governance and is manifestly an abuse of parliamentary powers of the National Assembly," the petition reads.
The petition stated that the National Assembly had on September 23, last year decided to unilaterally remove county governments as beneficiaries of the Road Maintenance Levy Fund for the 2024-2025 and 2025-2026 financial years, citing section 6 of the Kenya Roads Board Act, 1999.
The decision was challenged in the High Court and a conservatory order was issued, suspending the decision.
The case was, however, withdrawn in February this year in an out of court settlement as Parliament promised to allocate Sh10.5 billion to the county governments through the County Governments Additional Allocation Bill, 2024.
National Assembly later reneged on the promise and the petitioners are apprehensive that county governments will get zero funds yet they have a constitutional responsibility over county roads.
"Effectively, the National Assembly has by design and subterfuge outrightly denied all the 47 county governments funds to maintain roads, which funds the Kenya Roads Board collects from Kenyans every day from purchase of fuel and is available in the bank account of Board for use," stated the petition.
With the move, the board will now channel funds through the Kenya National Highways Authority (KeNHA) Kenya Rural Roads Authority, Kenya Urban Roads Authority and Kenya Wildlife Service (KWS).
"The petitioners aver that disbursements of the funds to KeNHA, KURA, KeRRA and KWS to the exclusion of the county governments is openly discriminatory and deeply unconstitutional," Mr Elanyi said in an affidavit.
The petitioners have named the road agencies as well as CS Transport Davies Chirchir, Parliament and Attorney General as respondents while the Commission on Revenue Allocation, the Senate and Intergovernmental Relations Technical Committee are listed as interested parties in the court case.
The petitioners want the court to issue a temporary blocking the Kenya Roads Board from disburse the money to the road agencies or disburse Sh10.5 billion to the county governments.
"Pending the hearing and determination of this application inter-partes, a conservatory order be issued stopping Kenya Roads Board from disbursing of funds from the Road Maintenance Levy Fund to KeNHA, KURA, KeRRA and KWS," the petition stated.
The petitioners will be asking the court to compel the Attorney to amend the provisions of the Kenya Roads Act 2007 to provide for an institutional framework that supports the constitutional classification of roads being national trunk roads and county roads.
The petitioners added that section 6 of the Kenya Roads Board Act is unconstitutional for violating various articles of the constitution.
It is the petitioners argument that the Kenya Roads Act 2007 is not aligned with the Constitution and wrong for Kenya Urban Roads Authority and the Kenya Rural Roads Authority continue to exist and take over the functions of the county governments in maintenance of county roads contrary to the provisions of section 18 of Part 1 of the Fourth Schedule of the Constitution.
