Education Lobby Group sues MoE, Treasury over delayed capitation to schools

Wagonya Wangenye, who has moved to court to compel MoE and National Treasury to release capitation funds to school

Elimisha Mwanachi Initiative, a Non-Governmental Organization, has moved to court to compel the Ministry of Education (MoE) and National Treasury to remit all monies owed to schools in form of capitation including arrears and further re-admit all children who dropped out of school due to lack of fees.

This is revealed in a petition filed Tuesday March 19, 2024 at the High Court Nairobi Constitutional and Human Rights Division of Milimani Law Courts by Daniel Wangenye, Elimisha Mwananchi Initiative Executive Director; which has sued Education Cabinet Secretary Ezekiel Machogu, Basic Education Principal Secretary Dr. Belio Kipsang, National Treasury Cabinet Secretary Prof. Njuguna Ndung’u and his Principal Secretary Dr Chris Kiptoo, as well as Attorney General who are respondents in the case.

In the petition, the lobby group further wants the Court to compel Education Cabinet Secretary Ezekiel Machogu and Basic Education Principal Secretary Dr. Belio Kipsang to make a decision that adhere to the Right to Free and Compulsory Basic Education for all Children in Kenya as per the Constitution of Kenya 2010, the Basic Education Act and Children’s Act, and ensure there is one 100 per cent transition from primary school to secondary school.

It also seeks orders from the Court directing the respondents to ensure that the Right of the Children to Free and Compulsory Basic Education is adhered to and report on the progress in removal of all barriers hindering the access of all children to Free and Compulsory Basic Education.

In the petition, the NGO argues that thousands of children from poor background have been locked out of school due to lack of fees and that as at January 28, 2024; a total of 131,854 candidates in 2023 KCPE examinations had not joined Form One.

He argues further that children from poor backgrounds who are unable to pay fees have been denied access to education and that failure by the respondents individually and collectively to remit capitation fees to schools have impacted negatively to access to education for Kenyan children particularly in secondary schools.


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“These Kenyan children have been denied their right to education despite the Constitution and the Basic Education Act guaranteeing them the Right to Free and Compulsory Basic Education. This is despite the Constitution of Kenya, Basic Education Act and the Basic Education Regulations (subsidiary) providing for the Right to Free and Compulsory Basic    Education,” said Wangenye in the court papers seen by Education News.

Wangenye also notes in the petition that failure by the respondents to remit the funds has resulted in massive school dropouts and the failure to achieve a 100 per cent transition from primary to Secondary school, citing a petition by the Kenya Secondary School Heads Association (KESSHA) which was presented to the National Assembly where they had compelled national treasury to release free day secondary education capitation deficit for the academic year 2019 and financial years 2020/2021 to 2022/2023 which outlines that every Kenyan child has a right to access free and compulsory basic education.

“These Financial disparities have contributed to wider achievement gaps, perpetuating inequality in education. This is especially evident in day secondary schools which rely wholly on capitation funds. According to the Kenya Secondary Schools Heads Association (KESSHA) report dated October 31 2023 the Respondent have accumulated debt of KSh54 billion by the end of 2023 and the amount continues to accumulate to date,” added the petition.

According to Wangenye, the children who are dropping out of school or failing to make secondary school are predisposed to child labour, drug abuse, prostitution, child marriage, early pregnancies and crime.

Wangenye also seeks a court declaration that the two ministries-MoE and the National Treasury-have reportedly violated the constitution by failing Kenyan children’s right to free and compulsory basic education, adding that students denied the right to education suffer mental distress and develop self- esteem issues and become victims of discrimination in employment and society generally; with their chances of success in their future being minimized for lack of access to Basic Education.

The matter was certified as urgent with High Court Judge Justice Lawrence N. Mugambi with the matter being scheduled to be mentioned on May 29, 2024 for further directions.

By Roy Hezron

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