Nairobi, Kenya - The National Assembly has now taken the fight for the Constituency Development Fund (CDF) to the Court of Appeal.
The assembly has filed an appeal challenging the High Court's decision invalidating the CDF Act of 2013, which authorised the allocation of billions of shillings to the 290 constituencies.
The MPs want the judgement delivered on February 20, this year, set aside, saying the High Court judges erred in several of their findings.
The judgement by Isaac Lenaola, Mumbi Ngugi and David Majanja dealt a major blow to elected MPs, who largely control the kitty.
The Act was declared unconstitutional following a petition by two NGOs, the Institute of Social Accountability and Centre for Enhancing Democracy and Good Governance.
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The judges however suspended the invalidity of the Act for 12 months, to allow the Government to change the law and determine where to re-allocate the funds.
The decision upset the MPs who patronise the committees that oversee the utilisation of the funds. In the 2014-2015 financial year, Sh31.5 billion was allocated to CDF, up from 22 billion the previous year.
The Act was repealed by the CDF Act of 2013. The law authorised the allocation of funds for various development projects in constituencies. The fund is managed by a national CDF board and committees in all the constituencies where the elected MPs are the patrons.
The NGOs contested the constitutionality of the Act in 2013. They also challenged the constitutionality of the administration and the management of the kitty.
They argued that the law contravened the principles of good governance, transparency, accountability, separation of powers and the division of powers between the national and county governments.
The National Assembly had opposed the petition arguing that MPs were only ex-officio members of the committees and were a link between the committees and the people.
The three judges held that the Act establishes a mechanism that runs parallel the constitutionally recognised governance structure.
The National Assembly is challenging the decision on 23 grounds. They argue that the 2.5 per cent revenue that constitutes CDF is deducted before the national revenue is shared between the national and county governments.
MPs further claim that the judges erred in failing to appreciate that under Article 206(1)(a) of the Constitution, Parliament is allowed to establish funds for specific purposes.
They also claim the judges erred in finding that MPs and senators are involved in the administration of CDF.
