NAIROBI, Kenya — The High Court has certified as urgent an application by the Controller of Budget seeking clarification on whether existing court orders restricting the processing and approval of bursaries extend to county bursary and educational support requisitions for the 2026/2027 financial year.
However, the court declined to issue any immediate orders on an ex parte basis.
“That the application is hereby certified urgent, no immediate ex parte reliefs are issued,” the order reads.
The application seeks directions on the scope of conservatory orders issued on June 17, 2025, in a constitutional petition concerning the division of functions between the national and county governments.
Controller of Budget Seeks Clarity
Through FCPA Dr Margaret Nyakang’o, the Controller of Budget says county governments have already started submitting requisitions for bursary and educational support expenditure for the 2026/2027 financial year.
The office says this has created uncertainty over whether the requests can lawfully be processed under the existing court orders.
The Controller of Budget wants the court to determine whether the June 17, 2025 orders remain applicable to the new financial year.
What the 2025 Orders Restrict
According to the application, the conservatory orders restrained the processing and approval of “fresh bursaries” and bursaries for “new beneficiaries” extending beyond the 2025/2026 financial year.
The Controller of Budget is seeking clarification on whether those restrictions continue to apply to county bursary and educational support requisitions submitted for 2026/2027.
Alternatively, the office wants the court to provide specific criteria for determining which bursary and educational support requests may be processed and approved while the constitutional petition remains pending.
Controller Wants Limited Processing Allowed
Pending determination of the application, the Controller of Budget has asked the court to allow the office to continue processing requisitions that are strictly limited to functions assigned to county governments under Part 2 of the Fourth Schedule to the Constitution.
The office wants such processing to be undertaken in accordance with Circular No. COB/Circular No. 1/2025.
It argues that clear directions are necessary to enable the Controller of Budget to perform its constitutional mandate without breaching existing court orders.
Contempt Concerns Raised
The Controller of Budget says the uncertainty creates a risk of being exposed to contempt proceedings if it approves expenditure that the court later finds inconsistent with the conservatory orders.
At the same time, the office says refusing to process expenditure that is constitutionally permissible could amount to unlawfully withholding funds intended for eligible county functions.
The application therefore seeks legal certainty on how the office should handle the requisitions while the underlying petition is still before the court.
Bursary Delays Could Affect Learners
The Controller of Budget has also warned that uncertainty over the processing of bursary and educational support requests could affect learners and families who depend on county assistance.
The office says the issue has become particularly pressing because county governments have already begun submitting expenditure requisitions for the new financial year.
The application seeks directions that would allow constitutionally permissible expenditure to be processed while ensuring compliance with the court’s existing orders.
Case Raises National-County Functions Question
The underlying constitutional petition raises broader questions concerning the division of functions between the national and county governments.
The petition is currently pending before a three-judge bench.
The Controller of Budget says the court has previously issued clarification and directions on related questions affecting the 2025/2026 financial year.
These included an ex tempore ruling delivered on April 8, 2025, and a further ruling issued on May 22, 2025.
The office is now asking for similar directions covering the 2026/2027 financial year.
For now, the application has only been certified as urgent. The court has not issued the requested immediate ex parte reliefs, and the substantive question on the scope of the 2025 conservatory orders remains to be determined.
