The High Court has declared the exclusion of county governments from benefiting from the Roads Maintenance Levy Fund (RMLF) unconstitutional.
In his judgement on Thursday, June 5, Justice Lawrence Mugambi ruled that current laws and decisions that deny counties access to road maintenance funding violate key constitutional provisions and the principles of devolution.
“A declaration is hereby issued the classification of public roads as national roads, rural and urban roads under Section 47 of the Kenya Roads Act, No. 2 of 2007 as read with First Schedule of the Kenya Roads Act No. 2 of 2007 – not only undermines the objectives of the devolution but is also unconstitutional for violating Article 186 and Section 18 of Part I of Fourth Schedule of the Constitution,” he stated.
Mugambi further declared that Section 6 of the Kenya Roads Board Act, 1999, which provides the legal framework for allocating the RMLF exclusively to national road agencies, is unconstitutional.
“A declaration is hereby issued that Section 6 of the Kenya Roads Board Act, 1999 is unconstitutional for violating the provisions of Articles 6, 10, 186 and Section 18 of Part I of Fourth Schedule of the Constitution,” he added.
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Mugambi also took issue with the National Assembly’s decision to exclude counties from RMLF allocations for two consecutive financial years.
He termed the decision a serious violation of the law and a direct threat to devolution.
“A declaration that the decision of the National Assembly dated 28th September 2023 to unilaterally remove and/or fail to provide for the County Governments as beneficiaries of funds of the Road Maintenance Levy Fund ('RMLF') in the financial year 2024/2025 and 2025/2026 and its further decision of 13th August 2024 to further remove County Governments as beneficiaries of Ksh10,522,211,853.00 conditional grants from funds derived from Road Maintenance Levy Fund ('RMLF') in the financial year 2024-2025 – amounts to a threat to undermine devolution and is thus unconstitutional for violating Article 10, 118, 186 and Section 18 of Part I of Fourth Schedule of the Constitution," he continued.
Mugambi directed that Ksh10.5 billion be released to county governments to facilitate road maintenance programs, adding that any further budgetary exclusions would be unlawful.
“A declaration that any appropriation of funds from Road Maintenance Levy Fund (RMLF) by the 1st respondent that does not provide for the county governments as beneficiaries of the RMLF undermines the principles of devolution, is unconstitutional, unenforceable, illegal null and void,” he added.
