The High Court of Kenya has issued an order barring the use of public funds for projects under a cooperation agreement between the national government and Nairobi County. The ruling, issued on September 28, 2026, was in response to a challenge by the Katiba Institute, which raised concerns over the constitutionality of the agreement. The court ordered that no public money should be committed, released, or spent on projects under the agreement unless authorized by Parliament or the Nairobi County Assembly.
The cooperation agreement between the national government and Nairobi County covers areas including waste management, roads, street lighting, markets, housing-related infrastructure, and water and sanitation. The agreement was signed by President William Ruto and Nairobi Governor Johnson Sakaja. The Katiba Institute challenged the agreement, citing concerns that it could be used to transfer or exercise county functions and commit public resources without complying with constitutional procedures and safeguards.
The High Court declined to suspend the agreement but set conditions that the two levels of government must follow as they continue implementing it. The court ruled that no county functions, powers, assets, staff, or revenue should be transferred to, or exercised by, the national government unless the requirements of Article 187 of the Constitution are met. This article outlines the procedures for transferring functions and powers between levels of government.
The court also ordered Nairobi Governor Johnson Sakaja and Prime Cabinet Secretary Musalia Mudavadi to disclose the agreement being implemented, the projects underway, and the source of funding for those projects. Additionally, they were ordered to provide the minutes of the committees established under the agreement. This transparency is aimed at ensuring that the agreement is implemented in a manner that is accountable and compliant with the Constitution.
In a further direction, the Nairobi governor was told to submit an ad hoc report, including records of public participation and documents showing its consideration and approval of the agreement itself. This report will help the court assess whether the agreement has been implemented in a manner that is consistent with the Constitution and the law. The court's orders aim to ensure that the rights of the people of Nairobi are protected and that the agreement is implemented in a transparent and accountable manner.
The case raises serious constitutional questions that require a full hearing, which is set for February 18, 2027. At this hearing, the court will consider broader issues surrounding the agreement, including its constitutionality and the implications for the relationship between the national government and Nairobi County. The court's decision will have significant implications for the implementation of the agreement and the distribution of powers and resources between levels of government.
The ruling allows funding for Nairobi County through additional allocations from the National Government, in line with Article 202(2) of the Constitution. This provision ensures that Nairobi County continues to receive necessary funding to deliver essential services to its residents. The court's decision balances the need for cooperation between levels of government with the need to protect the Constitution and ensure accountability in the use of public resources.
Key points
- The High Court bars public funds use for projects under a cooperation agreement between President Ruto's national government and Nairobi Governor Sakaja's administration.
- The court sets conditions for the implementation of the agreement, including authorization by Parliament or the Nairobi County Assembly.
- The case raises serious constitutional questions that require a full hearing, set for February 18, 2027.
