Court declares payment of school fees via privately owned e-Citizen unconstitutional, irrational

The High Court has quashed the government’s directive requiring parents to pay school fees through the privately owned eCitizen platform declaring it illegal and irrational.

Effectively, Justice Chacha Mwita also nullified the January 2024 circular issued by then Education Principal Secretary Belio Kipsang, which contained the directive.

Belio has since swapped dockets with former Immigration PS Julius Bitok who replaced him at the Education Department while Belio took over the Immigration Services docket.

This is another major setback the government has suffered.

The court also issued a sweeping injunction barring Cabinet Secretaries John Mbadi (Treasury), William Kabogo (ICT) and Migos Ogamba (Education), from enforcing the eCitizen payment system for school fees.

The judge further prohibited the CSs and their agents from charging any administrative, convenience, or transaction fees, including the Sh50 fee or any other additional charges in relation to the e-payment system.

James Ayugi is the founder and Chief Executive Officer of Webmasters. Webmasters is the firm that built the e-Citizen platform.

The court directive comes against the backdrop of a bombshell by the Auditor-General Nancy Gathungu who revealed that the government has limited control over the e-Citizen platform, potentially compromising accountability of the billions of shillings processed through it, with collections averaging Sh350 million daily.

The decision by the court comes after Dr Magare Gikenyi, a Nakuru-based doctor moved to court challenging the government’s directive to parents arguing that the same was illegal and unconstitutional, as it lacked public participation and disregarded the principle of transparency in governance.

Justice Mwita on Tuesday, April 1, 2025 declared that President William Ruto’s directive issued in January 2024 violated constitutional provisions due to the lack of adequate public participation and engagement with stakeholders.

The court ruled that the directive was implemented without adequate public participation and partners’ engagement, thus violating constitutional provisions.

Justice Mwita also found that the Sh50 convenience fee imposed on transactions on e-Citizen has no legal basis.

The court noted that the fee amounted to double charge and that the government is forcing people to use a system they did not ask for and making them pay to sustain it.

“It does not make sense for the government to compel citizens to use a platform and then force them to pay to sustain it. This is irrational and unconscionable,” the judge said.

He said there is no explanation regarding who would receive the convenience fee and what it is used for, thus making the charge unlawful.

Gikenyi, the petitioner argued that there is no legislation or framework guiding how the funds are utilised or returned to the end users.

The petitioner also questioned the rationale behind the Sh50 transaction fee, saying it could disadvantage parents who pay fees in kind.

It was also his argument that compelling parents to pay fees via e-Citizen was arrived at without public participation and was against statutory and constitutional safeguards.

“There was no legal basis for directing parents to pay school fees through the e-Citizen platform as the directive was issued without partners’ engagement in the education sector in violation of the constitution,” Justice Mwita ruled.

He said the directive did not take into account parents who cannot access internet services and have no mobile phones. “The directive causes potential indirect discrimination,” Justice Mwita said.

Last year, the Auditor General revealed that the government has little control over the e-Citizen self-service and payment portal, and warned that this could compromise accountability of the billions of shillings processed through the platform.

Collections through the platform average Sh350million daily, up from Sh50million in the financial year ended June 2023.

More than 19,000 public services are currently available on e-Citizen, out of which 15,440 have been fully on-boarded.

“Preliminary review of operations of the e-Citizen Government Digital Payments (GDP) platform indicate that, despite the strategic importance of e-Citizen, the government does not have full control of the system and [relies] significantly on the vendor for some critical functions,” Gathungu said in an audit report.

The Auditor-General pointed out that significant control of the system by the vendor has made it difficult for the Government Digital Payments Unit (GDPU) to on-board some services “Lack of full control of the system exposes the government to the risk of revenue leakage, lack of full accountability, system unavailability or downtime, security vulnerabilities and threats including lack of business continuity,” the Auditor-General warned.

Gathungu’s verdict on e-Citizen is that its “current IT controls may not guarantee the integrity of the data processed through the system”.

The revelations are contained in the audit report on the national government for the financial year ended June 2023, which also notes that the Office of the Auditor-General is currently undertaking a special audit of e-Citizen to establish the credibility and reliability of the system.

“This special audit is informed by the current strategic importance of e-Citizen in the financial architecture of the government. The special audit is expected to provide highlights on the credibility and reliability of the e-Citizen system, including assurance on whether data processed through the system is accurate and complete,” the Auditor-General said.

In the report documenting preliminary weaknesses identified on e-Citizen, the Auditor-General also revealed that, despite the shift to the digital platform, the National Treasury is handling reconciliations and settlement of payments manually, which run the risk of human error.

“Review of financial operations of the GDPU indicates that reconciliations and settlements … were done manually … on two days a week. The procedures are tedious and entail the physical transfer of documents for approvals. Further, manual processes introduce the risk of human errors and delays in the transfer of payments,” the Auditor General said.

In view of the new policy requiring all payments for services to be done through e-Citizen, she added, the manual system of reconciliation and settlement might not be sustainable.

She urged the Treasury to ensure that reconciliation and settlements are done in real-time.

The Auditor-General could not confirm the adequacy of internal controls over reconciliations and settlements through e-Citizen.

Gathungu further revealed that the Treasury declined to provide the consultancy agreement entered between it and the vendor operating the e-Citizen system.

“It was, therefore, not possible to establish the terms of the consultancy and the responsibilities of each party in the management of the e-Citizen Government Digital Payments System,” Gathungu revealed.

She said e-Citizen continues to operate without an approved IT policy for governance and management of its ICT resources and lacks an ICT Steering Committee that could assist in the development of the ICT Policy Framework.

“Lack of an approved IT Policy may result in an unclear direction regarding maintenance of information security across the Unit and safeguarding the Unit’s ICT assets.

In these circumstances, users may not have any rules and procedures to follow in order to minimise risk of errors, fraud, and the loss of data confidentiality, integrity, and availability,” Gathungu said.

“In addition, the system lacks an approved Business Continuity Plan and a secondary backup site,” she added.