Motorists across Kenya have suffered a fresh setback after the Lady Justice Mugure Thande upheld the controversial KES. 7 increase in the road maintenance fuel levy, rejecting calls to overturn the hike or compel refunds.
Vide a judgment dated 23rd January, 2026 and delivered on 9th February, 2026, the High Court sitting in Malindi dismissed a public interest petition filed by the Haki Yetu Organisation challenging the legality of the Road Maintenance Levy Fund (Imposition of Levy) Order, 2024.
Fuel Levy – Origin of the Road Maintainance Levy Increase
The Fuel levy was increased courtesy of Legal Notice No. 109 published on July 10, 2024. The order that raised the fuel levy on both petrol and diesel from KES. 18 to KES. 25 per litre — effectively imposing a KES. 7 (39%) increase per litre, contributing to higher pump prices and adding pressure on transport and living costs. The said fuel levy is collected and remitted to the Kenya Roads Board.
The Petition by Haki Yetu Organisation raised several constitutional questions, chief among them the allegation that the Government failed to comply with foundational constitutional principles — particularly public participation, which is entrenched under Article 10 of the Constitution of Kenya as a core national value and principle of governance. The petitioner contended that the process leading to the enhancement of the Road Maintenance Levy from Sh18 to Sh25 per litre was procedurally defective, arguing that the Executive did not facilitate meaningful, inclusive and transparent public engagement before implementing the levy order. According to the petition, the absence of adequate civic consultation rendered the fuel levy unconstitutional and therefore invalid.
The Petition enjoined the The Cabinet Secreatry for Roads and Transport, The Kenya Roads Board, The Energy and Petroleum Regulatory Authority and the Attorney General as the 1st to 4th Respondents respectively.
The Respondents, on their part, defended the increment on fiscal and macro-economic grounds. They argued that the enhancement of the Road Maintenance Levy was necessary to bridge a widening funding deficit attributed to inflationary pressures, the depreciation of the Kenya Shilling against the United States Dollar, escalating construction costs, and the expansion of the national road network. According to the Board, a levy of KES 35 per litre would be required to fully address the financing gap, though the Government ultimately implemented an increase to KES 25 per litre.
On the question of process, the Respondents maintained that the constitutional threshold for public participation was met. They submitted that the draft Levy Order on the proposed Fuel Levy increase was circulated to stakeholders, public hearing forums were convened, and memoranda were received and subsequently tabled before Parliament for consideration. On that basis, they contended that the impugned order was procedurally sound and compliant with Article 10 of the Constitution.
Ultimately, the Court in its decision stated that, the Government followed constitutional procedures on public participation before implementing the increase.
The Court outlined that, the consultation process — involving printed notices, opportunities for written memoranda, regional forums, and submission of documents to Parliament — satisfied legal requirements under Article 10 of the Constitution. Assertions that the public was not meaningfully consulted were unsubstantiated, as petitioners failed to produce evidence showing specific individuals were prevented from participating. As a result, the court found that the levy order remains valid and enforceable.
Paragraph 32 of the Judgement stated;
I find and hold that the Petitioner has failed to dischargethe burden of proof placed upon it under the
Evidence Act. I further find that the public participation programme rolled out by the Respondents
was reasonable in the circumstances. There was compliance with the requisite legal and procedural
requirements for public participation. Accordingly, the material placed before the Court is not
sufficient to lead to the categorical finding that the promulgation of the Levy Order was flawed as
alleged.
This judgment effectively affirms the legality of the KES 7 increment, meaning the enhanced fuel levy remains valid and will continue to be charged on every litre of petrol and diesel. The decision preserves the current statutory framework unless overturned by a higher court. It now remains to be seen whether the petitioner will lodge an appeal and escalate the matter to the Court of Appeal for further determination.
The full Judgement can be accessed here.
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