Blow to Gov’t as Court of Appeal upholds ban on mandatory payment of school fees via eCitizen

The government has suffered a setback after the Court of Appeal declined to grant orders suspending a High Court decision that declared the mandatory payment of school fees through the eCitizen platform and the associated Ksh.50 convenience fee unconstitutional.

The appellate court judges dismissed the National Treasury’s application seeking to stay the execution of the High Court judgment issued on April 1, 2025, in Constitutional Petition No. E059 of 2024.

The application had been anchored on rule 5(2)(b) of the Court of Appeal Rules and sought to preserve the government’s directive while it pursued an intended appeal.

The High Court, presided over by Justice Chacha Mwita, had quashed a circular issued by the Ministry of Education directing all parents to pay school fees exclusively through the eCitizen platform.

The court further outlawed the Ksh.50 convenience fee, terming it an illegal charge lacking legal basis, discriminatory, and imposed without public participation.

In the stay application, the government, through Treasury Principal Secretary Dr. Chris Kiptoo, argued that the intended appeal raised weighty legal questions, including the legality of the High Court’s reliance on Auditor General reports and the finding that the eCitizen platform lacked a clear ownership structure.

The State insisted that the eCitizen platform is fully government-owned and that the convenience fee is a lawful service charge rather than a tax.

The Treasury further warned that unless the High Court decision was suspended, the government risked plunging more than 15,000 digital services into operational paralysis, as the platform is designed to be self-sustaining and relies on convenience fees to meet maintenance and contractual obligations.

However, the respondents, including petitioner Dr. Magare Gikenyi, KUPPET, and the Law Society of Kenya (LSK), fiercely opposed the stay request.

They accused the government of approaching the appellate court with unclean hands, arguing that it continued to levy the quashed convenience fee despite the High Court’s orders.

Dr. Magare maintained that the government would suffer no irreparable harm if the fees remained suspended, noting that the judgment did not invalidate the eCitizen system itself but only outlawed the unlawful levy.

He warned that granting a stay would perpetuate an illegal and exploitative charge on citizens and frustrate the enforcement of a valid court decision.

KUPPET and LSK echoed these sentiments, saying the State had failed to demonstrate any substantial loss and that the public interest squarely lay in upholding the rule of law.

In rejecting the application, the Court of Appeal held that the government had not satisfied the twin requirements for a stay under rule 5(2)(b): an arguable appeal and proof that the intended appeal would be rendered nugatory absent a stay.

The judges found that the High Court’s decision was anchored in constitutional principles of legality, public participation, and non-discrimination.

They further noted that halting the ruling would effectively sanction the continued collection of an illegal fee from members of the public.

The court emphasized that public interest demanded strict adherence to the Constitution and that the government retained lawful avenues to fund digital platforms without violating citizen rights.

The dismissal of the stay application means that the government cannot compel payment of school fees through eCitizen, the Ksh.50 convenience fee remains illegal and cannot be collected, and the High Court orders remain in full effect as the intended appeal proceeds.