The High Court, on Thursday, January 23, issued a landmark ruling directing National Treasury Cabinet Secretary John Mbadi and 20 county governors to ensure that at least 30 per cent of their budgets are allocated to development projects as required by the Constitution of Kenya.
The ruling, delivered by Justices Teresia Matheka, Rayola Olei, and Robert Limo, declared the ongoing practice by the national and county governments of allocating less than the mandated 30 per cent of their budgets to development as unlawful.
The court emphasized that this non-compliance contradicts constitutional provisions designed to promote equitable development and responsible use of public resources.
This judgment stemmed from a 2024 petition filed by the Kenya Human Rights Commission (KHRC), which accused both levels of government of neglecting their development obligations.
KHRC argued that allocating less than 10 per cent of budgets to development undermined the social, economic, and cultural rights of Kenyans.
The court, siding with KHRC, issued a three-month ultimatum to the concerned parties to comply with the new directive and report back on their progress.
A report by the Controller of Budget, presented in court, revealed that the national government had allocated only 17 per cent of its revised gross budget to development during the first half of the 2023-2024 fiscal year.
The counties, on the other hand, painted an even grimmer picture, with most of those sued by KHRC allocating less than 10 per cent of their budgets to development.
Counties Falling Short of Development Allocation
According to the report, counties such as Nairobi (3.3 per cent), Kisii (2.9 per cent), Machakos (3.5 per cent), West Pokot (8.7 per cent), Nyandarua (7.0 per cent), Lamu (7.5 per cent), and Nyeri (6.4 per cent) were among the worst performers.
Other counties falling below the 10 per cent mark included Samburu (5.2 per cent), Taita Taveta (4.4 per cent), Makueni (7.1 per cent), Meru (9.8 per cent), Kericho (7.6 per cent), Baringo (5.8 per cent), and Isiolo (9.7 per cent).
Counties that performed slightly better but still failed to meet the 30 per cent threshold included Bomet (27.1 per cent), Uasin Gishu (27.0 per cent), Laikipia (22.5 per cent), Marsabit (21.7 per cent), and Narok (22.4 per cent).
The report highlighted a concerning trend in budget allocation practices, revealing that during the 2022-2023 financial year, 16 counties failed to meet the 30 per cent threshold.
Additionally, from the 2018-2019 to the 2021-2022 financial years, eight counties consistently failed to allocate the required portion of their budgets to development.
Nairobi Among Counties Spending Nothing on Development
The Controller of Budget, Margaret Nyakang’o, singled out Nairobi County, led by Governor Johnson Sakaja, as one of the counties that failed to allocate any funds to development projects.
Other counties in the same category included Baringo, Elgeyo-Marakwet, Kajiado, Kisii, Lamu, Nyandarua, Tana River, Uasin Gishu, and West Pokot.
This was despite all 47 counties receiving a total allocation of Ksh576.73 billion in the financial year ending June 2024.
Out of this amount, Ksh205.33 billion (36 per cent) was earmarked for development, while Ksh371.4 billion (64 per cent) was set aside for recurrent expenditures.
Constitutional Obligations on Budget Allocation
The failure to meet the 30 per cent development allocation violates Article 201(b) and (d) of the Kenyan Constitution.
These provisions mandate that public financial expenditures must promote equitable development across the country and ensure the prudent and responsible use of public funds.
KHRC, in its petition, underscored how the failure to meet this requirement not only stunts economic growth but also denies Kenyans their basic rights to improved infrastructure, better services, and sustainable development.
The court’s orders now compel CS Mbadi and the governors to act promptly to rectify the situation and adhere to constitutional guidelines.
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