Kilifi Senator Stewart Madzayo has moved to the court seeking orders to stop the charging of a convenience fee to Pesaflow on the payments made for government services on or through the eCitizen platform.
In a petition filed at the High Court at Malindi, Madzayo said the Sh50 that is charged on every transaction regardless of the amount payable for a service, offends the constitutional right to equality, non-discrimination and equal protection.
In the case in which he is suing Pesaflow, Treasury CS, Kenya Commercial Bank (KCB) and Equity Bank, Madzayo asked the court to declare that they are in violation of the consumer rights guaranteed in the constitution.
He listed Safaricom as an interested party.
The second-term senator moved to the court after interacting with the government payment portal when he took his children to Fort Jesus Museum and realized that besides the Sh100 service fee required, he also had to pay a convenience fee of Sh50.
The same was the case when he applied for the perusal of a company file at the Office of the Attorney General and the Department of Justice and had to pay Sh500, and the fee to Pesaflow. Both services were charged as convenient fees, despite the service fees being different.
Madzayo termed this as "unconscionable and oppressive to the applicant, citizens and all persons as consumers of government services".
He noted that the said convenience fee is outside the normal charges applicable and payable to the government through the Treasury CS for accessing government services.
In the petition dated November 21, Madzayo pointed out that the various gazette notices mentioning the eCitizen.go.ke platform, describe it as a wholly owned domain and portal of the government of Kenya.
He states that the Sh50 paid to Pesaflow is "shrouded in mystery, opacity, and it is unknown in law".
"There is no legal basis for charging the impugned convenience fee especially given that the applicant, citizens and all persons as consumers of government services already make payment for the services sought from the government," he added.
He argued that it is unfair and unconstitutional for Pesaflow and CS Treasury to impose the convenience fee on taxpayers and burden them while questioning the role and ownership of the former.
The Senator questioned why other arms of the government, such as the judiciary, receive payments for services without the need for payment of a convenience fee to a third party.
In the assumption that the fee is legitimate, Madzayo wondered whether Pesaflow paid any taxes on the same.
"It therefore begs the question, what exactly is the role of the 1st Respondent (Pesaflow() in a transaction between the user of a government service and the government?" he asked.
On including Safaricom in the matter, he said the transaction charges charged by the telco during payments end up adding onto the money that a Kenyan has to use when paying for government services.
"The imposition of this convenience fee on the petitioner, citizens and all users of the eCitizen.go.ke platform means that the user of the service pays the government fee for the service; the convenience fee; and the transaction charges charged by the Interested Party whichever payment platform the user engages such as M-Pesa," the petition reads.
Further, Madzayo said having Pesaflow, which he said remains "mysterious and questionable", in the service provision payments, violates Article 227 of the Constitution which requires that when a state organ or other public entity contracts for good or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
Besides the order to stop the charging, he also wants the court to declare that the respondents in the suit have violated his Consumer rights guaranteed under the Constitution.
He is also seeking a declaration that the impugned convenience fee charged by Pesaflow on all payments made on or through the eCitizen.go.ke platform is an unlawful fee which offends Article 209 of the Constitution.
This is considering that Pesaflow is neither a county government nor a national government.
Further, the Senator wants the court to order that should the government require the provision of any payment services, then it has to procure the same in accordance with the above article.
"An order be and is hereby issued compelling the 1st Respondent (Pesaflow) to surrender the sum total of all the monies it has collected as ‘convenience fee’ to Kenya Revenue Authority(KRA)," Madzayo also asked of the court.