Koome appoints three-judge bench to decide if MPs broke law in CDF push

Chief Justice Martha Koome has appointed a three-judge bench to hear a petition challenging Members of Parliament’s bid to entrench the Constituency Development Fund (CDF) into the Constitution.

In a notice, Koome named Justices Eric Ogola (Presiding), Hillary Chemitei, and Patricia Nyaundi to determine the petition filed by Katiba Institute and there, which argues that the process to amend the Constitution is unconstitutional and fatally flawed.

The move follows a referral by High Court Judge Lawrence Mugambi on September 18, 2025, who ruled that 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 the provisions of Article 165 of the Constitution,” Justice Mugambi directed.

As he referred the case to the Chief Justice, Justice Mugambi also issued conservatory orders suspending Parliament from forwarding the Constitution of Kenya (Amendment) Bill, 2025, to President William Ruto for assent.

“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,” he ruled.

Katiba Institute contends that Parliament’s move to amend the Constitution without first enacting a referendum law violates the Constitution and undermines public confidence in constitutional reform.

“All organs of State, including Parliament and the President, must remain within the constitutional confines when interpreting and implementing the Constitution,” Katiba Institute states in its petition.

The lobby group lawyer Joshua Malidzo says President Ruto’s request to Parliament in December 2022 to entrench the CDF, the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) in the Constitution was “fatally flawed” since there is no legislation to guide a referendum.

“The President knew, or ought to have known, that there was no legislation governing the process,” Katiba’s lawyer Malidzo told the court.

“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.”

The new judges are expected to determine whether Parliament and the Executive violated the Constitution by attempting to entrench the Constituency Development Fund (CDF), the Senate Oversight Fund (SOF), and the National Government Affirmative Action Fund (NGAAF) without first enacting a referendum law. 

They will also decide if the process initiated by President Ruto in December 2022 to amend the Constitution was legally sound and consistent with the procedures outlined under Articles 255 to 257 of the Constitution.

Their task will include interpreting whether the proposed amendments touch on “entrenched provisions” that can only be altered through a referendum and whether Parliament’s actions amounted to an overreach of its legislative powers. 

The bench’s decision is expected to provide crucial guidance on how future constitutional changes should be conducted, particularly in the absence of a clear legal framework governing national referenda.

This is after petitioners argue that the Bill touches on “entrenched provisions” under Article 255(1)(h) and (i) of the Constitution, those concerning the functions of Parliament and the structure of devolution, which can only be amended through a referendum.

“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,” Malidzo states.

Parliament had urged the court to dismiss the case, arguing that it was premature and amounted to judicial interference in legislative processes.

 But Justice Mugambi disagreed, ruling that the court had jurisdiction to determine whether lawmakers had followed due constitutional process.

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

Malidzo said the case reopens a long-running debate on constitutional reform. 

“Parliament must first pass a referendum law. The case before the court now reopens a debate that has haunted Kenyan politics since the Building Bridges Initiative (BBI) was struck down in 2021,” he said.