High Court Orders Treasury, 20 Counties to Allocate 30% to Development

The High Court on Thursday, January 23, issued orders directing the National Treasury Cabinet Secretary John Mbadi and 20 county governors to allocate 30 per cent of their budgets towards development as per the Constitution of Kenya.

While delivering their ruling, Judges Teresia Matheka, Rayola Olei, and Robert Limo declared that the ongoing failure by the national and county governments’ to allocate 30 per cent of their budgets for development was unlawful.

This was after a petition filed by the Kenya Human Rights Commission (KHRC) in 2024 where they sued the two levels of government over spending less than ten per cent of their budgets on development.

In their petition, KHRC told the court that failing to allocate the required 30 per cent undermined development, violating Kenyans’ social, economic, and cultural rights.

In addition, the three judges gave the aforementioned parties a three-month ultimatum to report on compliance with the fresh order.

Cited in the petition was a report from the Controller of Budget that stated that the national government had allocated only 17 per cent of its revised gross budget to development expenditures during the first six months of the 2023-2024 financial year. 

The petition revealed that most of the counties sued by KHRC spent less than ten per cent of their budgets on development. The counties included 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). 

Other counties below ten per cent were 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 exceeded ten per cent allocation but still missed the 30 per cent threshold were Bomet (27.1 per cent), Uasin Gishu (27 per cent), Laikipia (22.5 per cent) and Marsabit (21.7 per cent) and Narok (22.4 per cent). 

In comparison, in the 2022-23 financial year, 16 counties did not meet the 30 per cent for development expenditures guideline. Additionally, eight counties failed to meet the same threshold from the 2018-19 to 2021-22 fiscal years.

A report by Controller of Budget Margaret Nyakang’o, revealed that Governor Johnson Sakaja led Nairobi County, along with the counties of Baringo, Elgeyo-Marakwet, Kajiado, Kisii, Lamu, Nyandarua, Tana River, Uasin Gishu, and West Pokot, in failing to spend anything on development.

This was despite all 47 counties being allocated Ksh576.73 billion, comprising Ksh205.33 billion (36 per cent) allocated to development expenditures and Ksh371.4 billion (64 per cent) to recurrent expenditures in the financial year ended June 2024.

Failure to allocate 30% of the budget to development violates Article 201 (b) and (d) demanding that the expenditure of public finances must promote the equitable development of the country and the prudent and responsible use of public money.