The High Court in Nairobi has temporarily suspended the directive by the Ministry of Education requiring parents to pay fees or any other levies for government learning institutions through the online platform, e-Citizen.
Justice Chacha Mwita issued the orders Wednesday following a petition filed by Nakuru Surgeon, Dr Magare Gikenyi.
The judge while issuing the orders said he was satisfied that fundamental questions have been raised in the petition.
"It is hereby ordered that an interim conservatory order is hereby issued suspending the Circular or letter by Principal Secretary (Belio Kipsang), Ministry of Education dated 31st January 2024 requiring parents, guardians, and or students to pay fees and or any other levies for all government learning institutions through eCitizen platform or any digital platform," read the order in part.
Dr Gikenyi on Tuesday filed a petition seeking orders to stop the directive by the government. He claims no public participation was conducted before the decision was made.
Gikenyi has named the CS National Treasury and Economic Planning, CS Interior, CS Information and Communication, CS Education, Kenya Revenue Authority, and the Attorney General as respondents.
The Council of Governors, Kenya Secondary Schools Heads, Kenya Primary Schools Heads, Kenya Parents Association, and the Consumer Federation of Kenya are interested parties.
The Principal Secretary Ministry of Education Belio Kipsang on January 31, 2024, in a circular to all the principals directed that all parents must pay for school fees through the e-citizen platform.
In the circular Belio said the directorate of e-citizen in partnership with the Information Communication Technology Authority (ICTA), Ministry Of Information, Communication & Digital Economy, and the National Treasury has been co-ordinating the on-boarding of all government services onto the e-citizen platform to enhance service delivery.
"As part of compliance with the requirement it's directed that parents and or guardians make fee payments for their learners in your institutions through this platform," read the circular in part.
Following the circular and on January 23, 2023, Treasury CS Njuguna Ndung'u through gazette notices No.1350 Vol. CXXV-No. 27 of February 3, 2023, entitled access fee to the government services offered on digital payments platform (e-citizen) introduced Sh50 for every transaction done on e-citizen by what is dabbled as "convenience and or transaction fee.
Gikenyi in the petition said the transaction fee was also irrational, absurd, and assumed a lot of issues.
The transaction fee and payment through e-Citizen to even children in the villages he noted will derail their education since it will block those parents who can't access mobile money transfers and those who pay their school fees through directly exchanging cereals like beans, maize, and livestock for fees.
"Forcing parents to pay their school fees through e-Citizen without their public participation is absurd and irrational. For instance, some parents pay fees in kind (by providing maize or beans directly to the school), the same will be locked out through this unfair administrative action. How do parents in rural setups who can't get these digital services cope?" stated Gikenyi.
Further, he noted there is no legislation or framework on how the said funds are utilized and sent back to the end users.
He noted that if the court does not stop the forced payment through e-citizens, constitutional violations will continue against the principles of good governance.
Gikenyi wants the court to issue conservatory orders suspending the circular and gazette notices requiring parents, guardians, and or students to pay school fees or any levies for all government learning institutions via an e-Citizen platform or any other digital platform.
He wants the court to declare that the purported introduction of "convenience/transaction fees" of Sh50 or any amount without public participation and other constitutional provisions and relevant statutes is unconstitutional, null, and void.
"Also seek to have the court issue a declaration that the forced and mandatory introduction of paying school fees and/or any levies to government institutions of learning and all other government institutions through e-citizen/digital platform without participation and other constitutional provisions and relevant statutes is unconstitutional," he said.
Further the court he said should declare that KRA is the only body mandated to collect tax on behalf of the National government.
