THE CDF LAWSUIT – 2013
CDF LAWSUIT TIMELINE
Introduction:
On January 2, 2013, The Institute for Social Accountability (TISA) took a bold step in advancing public accountability by filing a landmark case challenging the National Treasury’s decision to release Ksh. 10.1 billion for the completion of CDF projects by the 10th Parliament—a move that raised questions about governance, fiscal prudence, and the integrity of public resource management. This case became a defining moment in TISA’s advocacy for transparent and lawful use of public funds, setting in motion a decade-long legal and civic journey that has influenced constitutional interpretation, citizen oversight, and the structure of devolved funding in Kenya. The timeline below captures the key milestones and outcomes of this groundbreaking case from 2013 to 2025, reflecting TISA’s unwavering commitment to accountability, justice, and the rule of law.
TISA POSITION PAPER ON THE UNCONSTITUTIONALITY IN THE CDF ACT, 2013
Introduction:
The Institute for Social Accountability (TISA) is a civil society initiative committed towards the achievement of sound policy and good governance in local development in Kenya, to uplift livelihoods of, especially, the poor and marginalized. TISA has been operational since March 2008, and is a locally registered trust previously known as the CDF Accountability Project. TISA has extensively been engaged in the management and utilization of decentralized funds (often called devolved funds).Besides monitoring accountability, TISA also offered supply side capacity building sessions targeting Constituency Funds Committees CDFCs and CDF project Committees (PMCS) in over 30 constituencies in Kenya. We are concerned with the process of enactment and content of the Constituencies Development Act, 2013.
Institute For Social Accountability & Another v Parliament Of Kenya & 3 others [2014] eKLR
Introduction:
This petition before the court, filed by TISA and others, challenged the constitutionality of the Constituencies Development Fund (CDF) Act, 2013 and the process that led to its enactment. The petitioners argued that the Act violated the Constitution by assigning county functions to the national government, undermining the principle of separation of powers, and placing CDF projects outside national and county planning frameworks—thereby risking duplication and misuse of public resources. They also contended that Parliament failed to ensure meaningful public participation as required under Articles 10 and 118 of the Constitution. The matter was further complicated when Parliament amended the Act through the CDF (Amendment) Act, 2013, particularly deleting subsection (2) of section 4, prompting the petitioners to seek leave to amend their case to address this legislative change.
JUDGEMENT – 2015
In its landmark judgment delivered on 20th February 2015, the High Court at Nairobi acknowledged the positive impact and developmental role that the Constituencies Development Fund (CDF) had played over the years, as well as the noble objectives behind its creation. However, the Court, led by Justices Lenaola, Mumbi Ngugi, and Majanja, held that good intentions could not override the Constitution, which remains the supreme law of the land. The judges therefore declared the CDF Act, 2013 unconstitutional and invalid in its entirety, citing violations of constitutional principles and the division of powers between the national and county governments. Recognizing the potential disruption that an immediate invalidation could cause, the Court suspended the declaration of invalidity for twelve months to allow Parliament sufficient time to enact corrective legislation and ensure a smooth transition. The judgment underscored the importance of good governance, constitutional compliance, and the rule of law, marking a major milestone in Kenya’s constitutional jurisprudence on devolution and public finance.
2016
The petition before the High Court once again questioned the constitutional validity of the National Government Constituencies Development Fund (NG-CDF) Act, a statute enacted as Parliament’s response to the Court’s earlier decision in The Institute for Social Accountability (TISA) & Another v The National Assembly & Others [2015] eKLR, which had declared the CDF Act, 2013 unconstitutional. The petitioners argued that the NG-CDF Act, though presented as a new law, contained provisions that continued to violate the Constitution and thus sought to have it invalidated. They also requested conservatory orders to suspend its implementation pending the Court’s determination. The case revisited the long-standing issue of whether funds such as the NG-CDF, largely financed and administered by the national government, are consistent with the constitutional principles of separation of powers, division of functions, and equitable revenue sharing between national and county governments. This petition built upon the 2015 ruling, which had suspended the invalidation of the earlier Act for twelve months to give the national government time to correct the defects — a directive the petitioners now claimed had not been adequately fulfilled.
2017
The consolidated appeals before the Court of Appeal arose from the High Court judgment delivered by Justices Lenaola, Mumbi Ngugi, and Majanja, which had declared the Constituencies Development Fund (CDF) Act, 2013 unconstitutional and invalid, while suspending the declaration for twelve months to allow Parliament to correct the defects. The case originated when The Institute for Social Accountability (TISA) and the Centre for Enhancing Democracy and Good Governance (CEDGG) challenged the CDF Act, 2013, arguing that it violated the Constitution of Kenya, 2010, particularly the principles of devolution, separation of powers, and public finance management. They sought to restrain the disbursement of Kshs. 10.1 billion to the CDF Board and constituency projects, claiming the Act conflicted with the devolved system of government and bypassed public participation requirements. The High Court’s decision was based on a detailed interpretation of constitutional provisions governing public finance, the roles of national and county governments, and the legislative mandate of Parliament, emphasizing that national revenue must be shared equitably and that functions between the two levels of government are distinct and interdependent. The judgment thus highlighted the tension between constituency-based development funds and the constitutional framework for devolution, forming the basis of the subsequent appeals by the National Assembly and others.
CROSS-APPEAL – 2019
2020
