The High Court has fast-tracked a constitutional petition challenging the legal framework governing withdrawals from certain public funds, with the parties scheduled to highlight their written submissions on February 17, 2027.
Justice Gregory Mutai directed petitioner Francis Awino to serve the petition and an accompanying application on the respondents in electronic and hard copy formats within seven days, paving the way for responses and written submissions ahead of the hearing.
The judge said the issues raised warranted an early determination, citing the petition and Notice of Motion dated October 12, 2026, together with the supporting affidavit and annexures.
“I have considered the Petition and the Notice of Motion, both dated 12th October 2026, together with the supporting affidavit and the annexures thereto. In my view, the Petition and the Motion raise issues that ought to be determined at the earliest opportunity,” Justice Mutai stated.
The case centres on whether the legal and administrative arrangements governing certain special public funds comply with constitutional requirements on public finance management and the Controller of Budget’s oversight role.
Awino wants the court to interpret Articles 206 and 228 of the Constitution to establish whether withdrawals from the identified funds require approval from the Controller of Budget.
Article 206 sets out the framework for the Consolidated Fund and other public funds, including restrictions on withdrawals.
Article 228 assigns the Controller of Budget responsibility for overseeing budget implementation by authorising withdrawals from specified public funds and requires such withdrawals to be authorised by law.
The petitioner is seeking orders compelling the National Treasury to disclose details of the funds listed in Schedule A, including the legal instruments establishing them, their administrators, accounting officers and the rules governing withdrawals and expenditure.
He also wants the Treasury to explain the legal basis for arrangements allowing money to be held outside the Consolidated Fund, clarify whether withdrawals require the Controller of Budget’s approval and disclose whether such approvals have been obtained.
Separately, Awino wants the Controller of Budget to file an affidavit explaining the office’s interpretation of the relevant constitutional provisions and Section 2 of the applicable Act.
A central question is whether approval for transferring money into a fund is distinct from approval for withdrawing or spending it. The petitioner argues that examining initial transfers alone would not establish whether adequate controls apply after the money enters the funds.
The application also seeks parliamentary committee reports, official proceedings and responses concerning proposals to extend the Controller of Budget’s oversight to special funds.
Awino wants relevant records preserved, including legal opinions, withdrawal authorisations, financial statements, reconciliation records and audit responses.
The petitioner says the application seeks to secure evidence before the substantive constitutional questions are determined. He is not seeking a blanket suspension of revenue collection or essential public services, including healthcare payments, housing programmes and road maintenance.
The court has scheduled the highlighting of written submissions for February 17, 2027. The legality of the challenged arrangements remains unresolved pending determination of the petition.
