NAIROBI, Kenya – The government has suffered a major legal setback after the Court of Appeal declined to suspend a High Court decision that outlawed the mandatory payment of school fees through the eCitizen platform and the associated Sh50 convenience fee.
In a ruling delivered this week, a three-judge bench dismissed an application by the National Treasury seeking to stay the execution of Justice Chacha Mwita’s April 1 judgement in Constitutional Petition No. E059 of 2024.
The Treasury had invoked rule 5(2)(b) of the Court of Appeal Rules, arguing that maintaining the High Court orders would jeopardise the continuity of the country’s digital services and cripple the self-sustaining revenue model that supports the eCitizen platform.
Treasury Principal Secretary Dr. Chris Kiptoo told the court that the intended appeal raised “weighty issues,” including claims that the High Court wrongly relied on Auditor General reports and erroneously concluded that the platform lacked a clear ownership structure.
The government insisted that eCitizen is fully state-owned and that the Ksh50 charge was a lawful service fee—not a tax.
Dr. Kiptoo warned that without the fee, the government risked plunging more than 15,000 digital services into operational paralysis, saying the platform depends on convenience fees to meet maintenance and contractual obligations.
Opposition: ‘Government Came With Unclean Hands’
The application, however, faced firm opposition from the petitioners—Dr. Magare Gikenyi, KUPPET and the Law Society of Kenya (LSK)—who accused the government of continuing to impose the quashed fee despite the High Court’s ruling.
Dr. Magare argued that the State would suffer no irreparable harm if the fee remained suspended, noting that Justice Mwita’s decision did not invalidate the eCitizen system but only outlawed what he termed an “illegal, discriminatory and unprocedural levy.”
KUPPET and LSK echoed these sentiments, saying the public interest lay in upholding the Constitution rather than shielding the government from the financial implications of an unlawful directive.
Public Interest Comes First, Court Rules
In dismissing the stay application, the Court of Appeal found that the State had failed to demonstrate the two mandatory requirements for a stay: an arguable appeal and a risk that the appeal would be rendered nugatory.
The judges noted that the High Court’s ruling was firmly grounded in constitutional principles of legality, public participation and non-discrimination.
Suspending it, they said, would amount to sanctioning the continued extraction of an illegal fee from citizens.
“The public interest demands strict adherence to the Constitution,” the court stated, adding that the government still has lawful ways to fund digital platforms without violating the rights of Kenyans.
With the stay request dismissed, the government cannot compel parents to pay school fees through eCitizen, and the Sh50 convenience fee remains illegal.
The High Court orders remain fully in force as the Treasury proceeds with its intended appeal.
