The institutional architecture described in NG-CDF’s founding documents, Cabinet Secretary, NG-CDF Board, constituency committees, Fund Account Managers and Project Management Committees, has operated for the past two years under an unusually direct legal threat, and its constitutional footing has now flipped twice in the space of eighteen months.

The chain of command

Section 24 of the NG-CDF Act restricts the Fund strictly to projects and services that fall within the exclusive functions of the national government, and explicitly bars spending on functions devolved to counties under the Fourth Schedule of the Constitution.

Ineligible expenditure includes recurrent costs of already-completed facilities (other than the operating costs of digital hubs), political or religious activities, personal cash or in-kind awards, and projects that benefit an exclusive or closed group rather than the wider community.

Level
Body
Core role
National policy

Cabinet Secretary (Economic Policy & Planning)

Sets policy guidance, approves the Board’s structure, submits the annual budget jointly with the National Assembly Select Committee National oversight.

NG-CDF Board

Evaluates constituency proposals for statutory compliance, disburses funds, coordinates multi-constituency projects, resolves disputes (Constituency)

NG-CDF Committee (NG-CDFC)

Evaluates ward-level proposals, consults government technical officers on costings, monitors execution, recruits local staff
Constituency (accounting)

Fund Account Manager (FAM)

Board-seconded officer who acts as Authority to Incur Expenditure (AIE) holder, authorising payments, LPOs and LSOs
(Field level)

Project Management Committee (PMC)

Implements individual projects, manages dedicated project bank accounts, keeps records, reports to the NG-CDFC
Structure as defined in the NG-CDF Act, 2015 (as amended).

The constitutionality dispute

This structure has been in and out of legal jeopardy since the Fund’s predecessor, the original Constituency Development Fund, was struck down by the Supreme Court in 2022 for violating the separation of powers.

On 20 September 2024, a three-judge High Court bench (Kimondo, Aburili and Thande JJ) declared the NG-CDF Act, 2015, as amended in 2022 and 2023, unconstitutional in Wanjiru Gikonyo & another v National Assembly, holding that the Fund treated constituencies as units of service delivery rather than of representation, created a de facto third tier of government, and improperly gave MPs an executive role in implementing projects.

Two of the three judges ordered that the Fund’s projects, programmes and activities cease at midnight on 30 June 2026, to avoid disrupting work already under way; the third judge would have ended it a year earlier.

The National Assembly appealed. On 6 February 2026, a three-judge Court of Appeal bench led by President Justice Daniel Musinga, with Justices Francis Tuiyott and A. O. Muchelule, set aside the High Court’s judgment in the consolidated Civil Appeal No. E884 of 2024.

The appellate court held that the trial court had struck down the entire Act without a sufficiently rigorous, text-by-text constitutional analysis, found that NG-CDF spending is properly part of the national budget approved annually through the Appropriations Act, and pointed to existing accountability layers, mandatory financial reporting, Auditor-General audits and parliamentary oversight, as evidence the Fund does not encroach on devolved county functions or breach the separation of powers.

The petitioners, Wanjiru Gikonyo and Cornelius Oduor Opuot, filed notice on 6 February 2026 of their intention to challenge that ruling at the Supreme Court, meaning the Fund’s ultimate constitutional status remains open as of this writing, even though it is currently operating under the Court of Appeal’s favourable ruling.

A parallel, more permanent fix: constitutional entrenchment

Anticipating exactly this kind of judicial back-and-forth, MPs pursued a second track in parallel: writing the Fund directly into the Constitution.

The Constitution of Kenya (Amendment) Bill, 2025, sponsored by Otiende Amollo (Rarieda) and Samuel Chepkonga (Ainabkoi), seeks to entrench not only NG-CDF but also the National Government Affirmative Action Fund (NGAAF) and a new Senate Oversight Fund (SOF) as Articles 204A, 204B and 204C of the Constitution.

After nationwide public participation across all 290 constituencies in May 2025, in which the Justice and Legal Affairs Committee reported that more than 98 percent of submissions supported the proposal, the National Assembly passed the Bill unanimously on 1 July 2025 (304 votes at second reading, 298 at third reading).

It now requires Senate concurrence, which is not guaranteed, and, ultimately, a national referendum or the constitutionally prescribed threshold of parliamentary approval, since amending Article 204 of the Constitution is at stake.

Supporters, including Leader of Majority Kimani Ichung’wah, describe NG-CDF as the most impactful fund at the community level and argue it complements rather than competes with county government resources.

Critics, including the Katiba Institute and commentators writing in ConstitutionNet, argue the entrenchment bill does not resolve the underlying separation-of-powers concern and risks permanently blurring the line between legislative and executive functions.