Justice Lawrence Mugambi extended the freeze as he directed the respondents in the case — including the Kenya Roads Board, CSs Treasury and Transport, Kenya Urban Roads Authority (Kura) and Kenya Rural Roads Authority (KeRRA) — to file their responses.
Through lawyer Peter Wanyama, CoG said none of the parties had filed their responses to the petition challenging the decision to deny county governments the funds.
Justice Mugambi pushed the case to March 31, 2025, when parties will highlight their submissions and get a judgment date.
The CoG alongside Issa Elanyi Chamao, Patrick Ekirapa, Paul Kirui and International Legal Consultancy Group sued the government arguing that a decision by the National Assembly to remove devolved units as beneficiaries of the levy was unconstitutional.
They said the decision has far-reaching implications on the funding of the devolved government system. Further, they argued, 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.
CoG said 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 at the High Court and a conservatory order 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 The case was, however, withdrawn in February this year in an out-of-court settlement as Parliament promised to allocate Sh10.5 billion to the county governments through the County Governments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.
The National Assembly later reneged on the promise, with the petitioners 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 the Kenya Roads Board collects from Kenyans every day from purchase of fuel and is available in the bank account of the board for use," stated the petition.
Denying the counties the funds meant that the board will channel funds through the Kenya National Highways Authority (KeNHA) Kura, KeRRA and the 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 will be asking the court to compel the Attorney-General 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.
