A lobby on Tuesday filed a petition at the Milimani Law Courts seeking to compel the Ministry of Education to release capitation to schools amidst delays.
Elimisha Mwanachi Initiative filed petition E151 of 2024 under the Constitutional and Human Rights Division alleging that the Ministry of Education as well as the Treasury are infringing on learners' right to access education by delaying disbursement of capitation.
Elimisha Mwanachi Initiative Executive Director Daniel Ndung'u Wangenye seeks to compel the government to release capitation funds to schools to enable the smooth running of schools and attainment of the Right to Free and Compulsory Basic Education.
"The delayed release of capitation funds has occasioned a financial crisis in schools, thereby jeopardising the delivery of curriculum in our learning institutions," Wangenye said.
The petition noted that according to the Kenya Secondary Schools Heads Association (KESSHA) report dated October 31, 2023, the Ministry of Education had accumulated debt of Sh54 billion by the end of 2023 and the amount continues to accumulate to date.
Wangenye also seeks a court declaration that the two ministries have reportedly violated the constitution by failing Kenyan children's right to free and compulsory basic education.
He noted that Section 29 of the Basic Education Act provides for Free Tuition.
"No public school shall charge or cause any parent or, guardian to pay tuition fees for or on behalf of any pupil in the school," the Act reads.
In the petition, Wangenye claims by failing to ensure a 100 per cent transition of learners to secondary schools, the Ministry of Education allegedly violated the Children’s Right to Free and Compulsory Basic Education.
Wangenye alleges that the two ministries have also refused to take measures to ensure children have access to Free and Compulsory Education in Kenya.
He sought that the court compel the Ministry of Education to make a decision that adheres 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 the Children’s Act.
High Court Judge Justice Lawrence Mugambi directed that the case will be mentioned on May 29.
This comes after Basic Education Principal Secretary Belio Kipsang on Monday told MPs that the ministry will release Sh16.25 billion in capitation to go towards Free Secondary Education in 10 days' time.