Court bars Parliament from forwarding CDF Bill to President Ruto

The High Court has barred Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025, popularly seen as a bid to anchor the Constituency Development Fund (CDF) in law, to President William Ruto for assent.

In a ruling delivered on Thursday, Justice Lawrence Mugambi of Milimani High Court issued conservatory orders halting the process pending the hearing of petitions filed by Katiba Institute and other parties.

“Pending the hearing and determination of this petition, a conservatory order is hereby issued forbidding and or preventing the forwarding of the Constitution of Kenya Amendment Bill 2025 to the President for assent, and if assented to, the same shall not take effect until the instant petition is heard and determined,” Justice Mugambi ordered.

Justice Mugambi referred the case to Chief Justice Martha Koome to appoint a larger bench, saying the petition raises serious and weighty constitutional questions that cannot be decided by a single judge.

 “This file is hereby forwarded to the Chief Justice for empanelment of an uneven number of judges to hear and determine the petition pursuant to provisions of Article 165 of the Constitution,” he directed.

The petitions, now five in total, have all been referred to the CJ to compose a bench

Some petitioners, including lawyer Lempaa Soyinka and UK-based activist Eliud Matindi, suggested that the bench include up to 17 judges.

But Justice Mugambi left that decision to the Chief Justice, noting: “All that is for the CJ.”

The National Assembly and Senate had argued that the case was premature because the Bill had not yet been enacted, and that the judiciary had no role in scrutinising parliamentary processes.

But Justice Mugambi dismissed those objections, stressing that courts cannot turn a blind eye where constitutional procedure is in question.

“This court has jurisdiction to determine the lawsuit if the process used to amend the constitution by the lawmakers meets the legal requirements,” he ruled.

He added: “Separation of powers does not shield Parliament from judicial scrutiny where it is alleged that constitutional procedures have been flouted.”

On the question of ripeness, he warned that waiting until a Bill becomes law could make constitutional violations irreversible.

 “Where constitutional principles are implicated, this court must intervene early to prevent an illegality from crystallising into law,” he said.

The petition was filed by Katiba Institute, through lawyer Joshua Malidzo Nyawa, who argued that Parliament cannot amend the Constitution without first enacting a law to guide the process.

“All organs of State, including Parliament and the President, must remain within the constitutional confines when interpreting and/or implementing the Constitution,” Katiba says in its court papers

The lobby group adds that when the President in December 9, 2022 requested Parliament to embark on constitutional amendments to establish the office of the leader of opposition and to entrench CDF, the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) into the Constitution, “he knew or ought to have known that there was no legislation governing the process.”

Katiba insisted that the “first port of call was to request Parliament to first enact legislation governing constitutional amendment before diving into the process of amending the Constitution.”

According to the petitioners, the  Bill touches on entrenched provisions under Article 255(1)(h) and (i) of the Constitution, namely the functions of Parliament and the structure of devolved government,  meaning it must go to a referendum.

Katiba Institute has faulted MPs for failing to enact legislation to guide the conduct of referendums, arguing that lawmakers have instead rushed into amending the Constitution without first putting in place the legal framework required.

The civil society body told the court that this omission has created confusion on whether proposed constitutional changes, such as the entrenchment of NG-CDF and other funds, would require a referendum, thereby undermining the integrity of the entire amendment process

With no legislation currently defining how referenda should be conducted, the petitioners say the process is fatally flawed.

The Constitution of Kenya (Amendment) Bill, 2025, seeks to entrench several funds, including NG-CDF, NGAAF, and the Senate Oversight Fund, into the Constitution