https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6851

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E482 OF 2023** **IN THE MATTER OF ARTICLES 2(1), 3(1), 10(2)(A) & (2), (19), 20(1), 21(1), 22(1), 23(1), 47(1), 165(3)(B), 165 (3)(D)(II), 231(1)(2)(3)(4) AND 5, 232 (1) (D) OF THE CONSTITUTION OF KENYA, 2010 AND** **IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **AND** **IN THE MATTER OF THE PUBLIC FINANCE MANAGEMENT ACT, NO.18 OF2012** **AND** **IN THE MATTER OF SECTION 4, 5, 6 AND 12 OF THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015** **AND** **IN THE MATTER OF SECTION 9 (2)(D) OF PUBLIC SERVICE (VALUES AND PRINCIPLES) ACT, 2017** **AND** **IN THE MATTER OF PART VII OF THE UIVERSITIES ACT, NO. 42 OF 2012** **AND** **IN THE MATTER OF PART XI OF THE TECHNICAL AND VOCATIONAL EDUCATION AND TRAINING ACT, NO. 29 OF 2013** **AND** **IN THE MATTER OF NATIONAL GOVERNMENT CONSTITUENCIES DEVELOPMENT FUND ACT, NO. 30 OF 2015** **AND** **IN THE MATTER OF THE HIGHER EDUCATION LOANS BOARD ACT, NO. 3 OF 1995** **AND** **IN THE MATTER OF EARLY CHILDHOOD EDUCATION ACT, NO. 3 OF 2021** **AND** **IN THE MATTER OF THE BASIC EDUCATION ACT, NO. 14 OF 2013 BETWEEN** **HON. FERDINAND NDUNGU WAITITU BABA YAO.................................PETITIONER** **VERSUS** **CABINET SECRETARY, MINISTRY OF EDUCATION..........................1ST RESPONDENT SPEAKER OF THE NATIONAL ASSEMBLY......................................2ND RESPONDENT HON. ATTORNEY GENERAL.........................................................3RD RESPONDENT** **JUDGMENT** **INTRODUCTION** 1. The Petitioner, Hon. Ferdinand Ndungu Waititu Baba Yao, describes himself as a conscientious Kenyan citizen, a father of school-going children, a church elder, a registered voter, a taxpayer, and a long-standing elected representative who has served as a Councillor, Deputy Mayor, Member of Parliament for both Embakasi and Kabete constituencies, and subsequently as the Governor of Kiambu County. He brings the present Petition in the public interest, asserting that the current framework for financing basic education in Kenya is fundamentally flawed, unequal, and discriminatory. Central to his grievance is the contention that whereas tertiary education benefits from a centralized, structured, and legally entrenched funding model comprising the University Fund, the Higher Education Loans Board (HELB), and the Technical and Vocational Education and Training (TVET) Fund, basic education, the very foundation upon which all advanced learning rests, is financed through a fragmented, opaque, and politically susceptible system that leaves the most vulnerable students behind. 2. The Petitioner seeks several declarations and orders of mandamus compelling the Respondents to establish a National Basic Education Fund, develop an integrated nationwide database for monitoring education funding, and rectify what he characterizes as systemic violations of constitutional rights under Articles 10, 27, 43, 53, 55, 56, 73, 76, and 201 of the Constitution of Kenya, 2010. 3. The Respondents oppose the Petition. The 1st Respondent, the Cabinet Secretary for Education, through the Replying Affidavit of Dr. Belio R. Kipsang, the Principal Secretary of the State Department for Basic Education, contends that the government has progressively put in place robust policy, legal, and administrative interventions to finance basic education. These include capitation grants for Free Primary Education, Free Day Secondary Education, Junior Secondary School, and scholarships, as well as affirmative action programs targeting marginalized and vulnerable groups. The 2nd Respondent, the Speaker of the National Assembly, through the Replying Affidavit of the Clerk of the National Assembly and detailed Grounds of Opposition, argues that the Petition offends the doctrine of separation of powers, that the Court lacks jurisdiction to dictate funding models as that is a policy matter reserved for the Executive and Parliament, and that the Petitioner has failed to exhaust alternative remedies available under Article 119 of the Constitution by first petitioning Parliament. The 3rd Respondent, the Hon. Attorney General, supports the positions of the 1st and 2nd Respondents. 4. The Court has carefully considered the Petition, the supporting affidavit, the 2nd Respondent’s Grounds of Opposition dated 5th March 2024, the 2nd Respondent’s Replying Affidavit sworn on 9th August 2024, the 1st and 3rd Respondents’ Replying Affidavit sworn by Dr. Belio R. Kipsang on 25th April 2024, the Petitioner’s Written Submissions dated 12th August 2024 and the 2nd Respondent’s Written Submissions dated 28th November 2024. All interlocutory applications were previously determined, and the matter now proceeds to final judgment on the Petition. **BACKGROUND** 1. The factual substratum of this Petition is not seriously contested in its broad strokes. The Petitioner avers that for historical reasons predating independence, Kenya has struggled with inequitable distribution of government resources across various regions. This inequality in access to resources has created a disparity in earning capacities from one homestead to another, meaning that not all Kenyan households have the ability to access education and training opportunities on an equal footing. 2. In an effort to address this challenge, the government introduced Free Primary Education in 2003, followed by Free Day Secondary Education in 2008. The Petitioner acknowledges these efforts but contends that they created a cascade of pressure on subsequent levels of education. Large numbers of graduates from the Free Primary Education program could not be accommodated in existing secondary schools, and later, graduates of Free Day Secondary Education faced challenges accessing technical, vocational, and tertiary education. 3. The Petitioner’s core complaint, however, is structural rather than merely quantitative. He argues that improvement of access, retention, and quality of education depends on efficient use of existing resources, particularly the limited funding channeled into the basic education sector through Parliament. He contends that unlike the tertiary level- which is structured with a centralized and standardized system for financing higher education through the University Fund (established under Section 53 of the Universities Act, No. 42 of 2012), the TVET Fund (established under Section 47 of the Technical and Vocational Education and Training Act, No. 29 of 2013), and the Higher Education Loans Board Act, No. 3 of 1995- the Respondent has omitted to put in place a similar structure for the financing of basic education. 4. The Petitioner describes the current funding model for basic education as comprising Free Primary Education grants, Free Day Secondary Funds, the National Government Constituencies Development Fund (NG-CDF), and County Development Funds in devolved units. Early childhood education is funded through County Government Funds under the Early Childhood Education Act, No. 3 of 2021. He asserts that this fragmented system lacks a uniform or standard criteria for transparent and fair distribution of public funds. He specifically highlights the composition of the National Education Board (NEB), whose eight members are appointed by the 1st Respondent, and the County Education Boards (CEBs) in each of the 47 counties, whose thirteen members are also appointed by the 1st Respondent, some with minimum qualifications of only secondary education. 5. The Petitioner further points to the NG-CDF as an example of duplication and political manipulation. He notes that the NG-CDF Board comprises twelve members, seven of whom are appointed by the 1st Respondent with Parliament’s approval. More critically, he highlights that the Constituency Oversight Committee, which oversees the fair distribution of NG-CDF funds, consists of five members: the local Member of Parliament and four other members unilaterally appointed by that same MP. He contends that this arrangement entrenches political considerations in the disbursement of education bursaries and grants. 6. To support his claim of systemic abuse, the Petitioner cites specific instances of malfeasance as deponed in his Supporting Affidavit. These include an investigation by the Directorate of Criminal Investigations (DCI) in March 2020 into twenty Members of the County Assembly (MCAs) of Nairobi County who were alleged to have siphoned millions of shillings meant for bursaries by using proxies and non-existent education centres. He also references a report by the Auditor General that flagged seventy constituencies for misusing or failing to account for millions of shillings disbursed by the NG-CDF to the education sector, identifying the Kilifi South bursary committee which could not provide supporting documents for Kshs.25,000,000/= allegedly disbursed, and the Ikolomani bursary committee which had allegedly disbursed Kshs.31,000,000/= without application forms being filled by the bursary sub-committee. In March 2023, residents of Gatundu North constituency demonstrated against the misappropriation of more than Kshs.48,000,000/= of NG-CDF funds by committee members together with the local MP. 7. Based on these facts, the Petitioner contends that the funding structure established by the Respondents at the basic education level is prone to abuse and corruption by the very offices meant to oversee its implementation. He asserts that a student can be allocated a department of education bursary, an NG-CDF bursary, and a county bursary simultaneously for the same purpose without any measure of accountability. He argues that this lack of transparency and a centralized need-assessment criterion leads to discriminatory outcomes, where less needy households sometimes benefit excessively while truly needy households go without support. **THE PETITIONER’S CASE** 1. The Petitioner’s case is anchored on the constitutional right to education as guaranteed under Article 43(1)(f) and the right of every child to free and compulsory basic education under Article 53(1)(b). He submits that basic education is not merely a right in itself but an indispensable means of realizing other human rights, and that the State bears an immediate obligation to take deliberate, concrete, and targeted steps towards its full realization. 2. In his Written Submissions, the Petitioner draws extensively from international human rights instruments that form part of Kenyan law by virtue of Article 2(6) of the Constitution. He relies on the Committee on Economic, Social and Cultural Rights General Comment No. 13, which defines the right to education as encompassing the elements of availability, accessibility, acceptability, and adaptability. He submits that Kenya has violated these standards by failing to ensure that functioning educational institutions and programmes are available in sufficient quantity, that education is accessible to everyone without discrimination, and that education is affordable to all. 3. The Petitioner further invokes Article 28 of the Convention on the Rights of the Child and Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), submitting that Kenya has an obligation to recognize the right to education on the basis of equal opportunity, to take measures to encourage regular attendance at schools and reduce drop-out rates, and to develop a detailed plan of action for the progressive implementation of compulsory, free, and accessible education within a reasonable number of years. 4. Addressing the objections raised by the 2nd Respondent, the Petitioner submits that this Court has jurisdiction to entertain the matter under Articles 23(1) and 165 of the Constitution. He argues that although the Petition touches on matters of policy, the Court has a constitutional duty to test policy actions and inactions against the legal standards for the protection of human rights. Citing ***Republic v Cabinet Secretary Ministry of Transport and Infrastructure & 3 others ex parte Francis N. Kiboro & 198 Others [2015] eKLR***, the Petitioner contends that with respect to socio-economic rights, the State is enjoined to give priority to ensuring the widest possible enjoyment of the right, having regard to prevailing circumstances, including the vulnerability of particular groups or individuals. 5. On the doctrine of exhaustion, the Petitioner argues that the remedy under Article 119 of the Constitution, petitioning Parliament, is not a bar to constitutional litigation. He refers to Section 3(g) of the Petition to Parliament (Procedure) Act, 2012, which requires a petition to indicate whether the issues are pending before any court of law, implying that a petition to Parliament is not intended to replace judicial recourse. He submits that there is no law in Kenya that has an exclusionary clause stating that matters touching on the basic education funding model must first be addressed before a specific tribunal or administrative body. 6. On the merits, the Petitioner’s submissions focus on three main themes. First, he argues that the funding structure for basic education is inadequate compared to the centralized model for tertiary education. He points to the TVET Fund, the Universities Fund, and HELB as examples of well-managed funds with transparent and fair criteria for allocation, governed by Boards appointed by the national government. He submits that no similar structured funding model exists for basic education, despite it being the foundation for advancement to higher learning. 7. Second, the Petitioner argues that the bursaries and grants structure for basic education does not have a transparent and fair criterion for allocation, leading to corruption and abuse of office. He submits that the instances of malfeasance cited in his affidavit, the DCI investigation into Nairobi MCAs, the EACC investigation into Uasin Gishu County, and the Auditor General’s report on NG-CDF, demonstrate a lack of centralized accountability and openness, which offends the transparency principle under Article 10(2)(c) of the Constitution. 8. Third, the Petitioner argues that the failure to put in place systems and procedures to distinguish and prioritize the needs of students is a violation of the protection of the marginalized as a national value under Article 10(2)(b), a breach of the duty to act fairly under Article 47 of the Constitution as read with Section 4(1) of the Fair Administrative Action Act, 2015, and a violation of the legitimate expectation of would-be beneficiaries. He relies on the doctrine of procedural legitimate expectation as articulated in ***Republic v Communications Authority of Kenya Ex Parte Airtel Networks Kenya Limited [2017] eKLR*** and ***Republic v Principal Secretary, Ministry of Transport, Housing and Urban Development Ex parte Soweto Residents Forum CBO [2019] eKLR.*** 9. The Petitioner concludes by praying for declaratory reliefs that the Respondents have violated Articles 10, 43, 53, 55, 56, 73, 76, and 201 of the Constitution by maintaining a differentiated, unequal, and discriminatory funding model for basic education. He further prays for orders of mandamus compelling the Respondents to establish a National Basic Education Fund and to develop a nationwide integrated database for monitoring and evaluation of the allocation and use of public funds for basic education. **THE 1ST AND 3RD RESPONDENTS’ CASE** 1. The 1st and 3rd Respondents, the Cabinet Secretary for Education and the Attorney General, filed a Replying Affidavit sworn by Dr. Belio R. Kipsang, the Principal Secretary of the State Department for Basic Education, on 25th April 2024. While the 1st and 3rd Respondents did not file separate written submissions, the facts deponed in the replying affidavit constitute their case in opposition to the Petition. 2. Dr. Kipsang avers that the government has progressively invested in basic education through the issuance of capitation grants, scholarships and bursaries, provision of school meals, provision of sanitary towels, training and employment of teachers, development of school infrastructure, and continuous quality assurance to ensure accessibility. He traces the evolution of education financing from the cost-sharing policy introduced in 1988, through the Free Primary Education Policy of 2003, the Free Secondary Education Policy of 2008, to the current capitation for learners in Junior Secondary School introduced in 2023 at Kshs. 15,042 per learner per year. 3. The deponent provides specific figures to demonstrate the government’s financial commitment. Under Free Primary Education, the government provides capitation of Kshs.1,420/= per learner per year, while learners with special needs receive Kshs.2,300/= per learner per year. Under Free Secondary Education, the government provides capitation of Kshs.22,244/= per learner per year, with learners with special needs receiving Kshs.35,000/= per learner per year. Capitation grants are disbursed from the Ministry based on enrolment as captured in the National Education Management Information System (NEMIS). To complement capitation grants, the government through the Jomo Kenyatta Foundation provides scholarships to vulnerable learners, and the NG-CDF also gives bursaries to needy learners. 4. Dr. Kipsang also draws attention to the recent work of the Presidential Working Party on Education Reforms (PWPER), whose report was launched on 1st August 2023. He annexes a copy of the report (marked “DBRK 1”), which contains detailed recommendations on the legal framework governing basic education, including proposed amendments to the Basic Education Act, the establishment of a coordinated management of bursaries and scholarships under a proposed Basic Education Scholarships and Bursaries Bill, and the creation of an Education Appeals Tribunal. He avers that one of the bills recommended by the Working Party and developed by the 1st Respondent is the Basic Education Scholarships and Bursaries Bill, 2024, whose objective is to provide a framework for a coordinated approach in the provision of scholarships and bursaries in basic education. 5. It is the 1st & 3rd Respondents’ case that the application and petition are speculative, premised on assumptions and generality, and that the government is continuously putting in place legal, policy, and administrative interventions on funding of basic education to ensure equity, fairness, and access to education for all. Therefore, they urged the court to dismiss the Petition for lack of merit. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent, the Speaker of the National Assembly, opposes the Petition through Grounds of Opposition dated 5th March 2024 and a Replying Affidavit sworn by the Clerk of the National Assembly on 9th August 2024. The 2nd Respondent’s written submissions dated 28th November 2024 provide a detailed legal framework for his opposition. 2. The 2nd Respondent’s primary contention is that the Court lacks jurisdiction to hear and determine the matter on account of the doctrine of separation of powers. It is submitted that the funding model for basic education is a policy matter that ought to be left to policymakers, and that the Judiciary must exercise judicial restraint to avoid interfering with the role of Parliament. He relies on the Supreme Court decision in ***Justus Kariuki Mate & Another v Martin Nyaga Wambora & another [2017] eKLR***, where the Court held that the interpretation of the Constitution calls for a delicate balance in the respective mandates of the different arms of government, and that the integrity of Court orders stands to be evaluated in terms of their inner restraint where the express terms of the Constitution allocate specific mandates and functions to designated agencies of the State. 3. Further reliance was placed on the decision in ***Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others [2018] eKLR***, where the Court held that where the Constitution has reposed specific functions in an institution or organ of State, the courts must give those institutions sufficient leeway to discharge their mandates, only intervening when the body is demonstrably shown to have acted in contravention of the Constitution or its decisions are so perverse that they cannot be allowed to stand. He submits that the Petitioner has not met that high threshold. 4. On the doctrine of exhaustion, the 2nd Respondent argues that the Petitioner failed to exhaust the remedy available under Article 119 of the Constitution, which grants every person the right to petition Parliament to consider any matter within its authority, including to enact, amend, or repeal any legislation. He relied on the well-established principle from the Court of Appeal in ***Speaker of National Assembly v Karume [1992] KLR 21****,* that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. He further relied on the Court of Appeal decision in ***Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR***, which affirmed that it is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. 5. On the merits, the 2nd Respondent averred that the Constitution does not mandate a single funding structure for all education levels. He contends that the distinct funding models for tertiary and basic education are grounded in the different administrative and operational needs of these educational levels. Higher education institutions have complex, resource-intensive needs, and a centralized national fund serves as a practical solution to handle broad coordination. In contrast, basic education is decentralized to improve accessibility and efficiency at the local level, with funding distributed through county and local governments better positioned to address specific regional needs. 6. The 2nd Respondent further submits that the right to basic education is progressively realizable, meaning that the government is required to take reasonable measures within available resources to ensure everyone can enjoy this right over time. He relies on the concept of progressive realization as recognized in the Belgian Linguistic Case (No. 2) of the European Court of Human Rights, where the Court ruled that within a democratic society, governments have broad discretion in policy matters. 7. On the claim of discrimination, the 2nd Respondent submitted that the Petitioner overlooks the government’s extensive efforts to provide free primary education and progressively extend access to secondary education under the Basic Education Act. He notes that Article 203 of the Constitution on equitable sharing of national revenue outlines that marginalized areas receive prioritized funding, which includes the education sector. He also points to Article 56, which mandates affirmative action for marginalized groups, and highlights programs such as the National Government Affirmative Action Fund (NGAAF) as evidence of the state’s active efforts to address inequalities. 8. Finally, the 2nd Respondent argued that the Petitioner’s claim that the funding model is porous and prone to abuse overlooks existing oversight mechanisms. He cites the Controller of Budget, the Auditor General, and the Ministry of Education as having statutory mandates to oversee the allocation, distribution, and use of educational funds. He submits that an order of mandamus cannot lie against Parliament because such an order would violate the principle of separation of powers by seeking to compel the National Assembly to enact specific legislation. 9. The Court was thus urged to dismiss the Petition with costs. **ANALYSIS AND DETERMINATION** 1. Having carefully considered the pleadings, affidavits, submissions, and authorities cited by the parties, the Court identifies the following issues for determination: 2. *Whether the Court has jurisdiction to hear and determine the Petition in light of the doctrines of separation of powers and judicial restraint.* 3. *Whether the Petitioner has exhausted the available legal and constitutional remedies before approaching the Court, particularly under Article 119 of the Constitution.* 4. *Whether the Petitioner has met the constitutional threshold for pleading a violation of rights with the required degree of precision and specificity.* 5. *Whether the current funding model for basic education in Kenya violates the Petitioner’s rights or the rights of any identifiable group under Articles 27, 43(1)(f), 53(1)(b), 55, and 56 of the Constitution.* 6. *Whether the funding model for basic education is discriminatory, ineffective, or otherwise inconsistent with the principles of public finance under Article 201 and the national values under Article 10 of the Constitution.* 7. *Whether the Petitioner is entitled to the reliefs sought* ***Whether the Court has jurisdiction to hear and determine the Petition in light of the doctrines of separation of powers and judicial restraint.*** 1. The question of whether this Court has jurisdiction to entertain a Petition challenging the funding model for basic education requires a careful examination of the constitutional boundaries between the three arms of government. The 2nd Respondent has forcefully argued that the matter is a policy issue reserved for the Executive and Parliament, and that the Court must exercise judicial restraint. This contention cannot be lightly dismissed, for the doctrine of separation of powers is a foundational pillar of Kenya’s constitutional democracy. However, its invocation does not operate as an absolute bar to judicial intervention where constitutional violations are alleged. 2. Article 165(3)(d) of the Constitution vests the High Court with jurisdiction to determine the question whether any law is inconsistent with or in contravention of the Constitution, and the question whether anything said to be done under the authority of the Constitution or any law is inconsistent with or in contravention of the Constitution. This jurisdiction is not ousted merely because the subject matter touches on policy or legislative functions. As the Supreme Court stated in ***Justus Kariuki Mate & Another v Martin Nyaga Wambora & another (supra)****,* the courts of law are the proper judge of compliance with constitutional edict for all public agencies. The Court emphasized that this jurisdiction is attended with the duty of objectivity and specificity in the exercise of judgment, and that for the due functioning of constitutional governance, the courts must be guided by restraint, limiting themselves to intervention in requisite instances upon appreciating the prevailing circumstances and the objective needs and public interests attending each case. 3. The Supreme Court further noted in the same decision that no arm of government is above the law, and that Kenya’s democracy being a constitutional democracy, the Constitution is the guiding light for the operations of all state organs. The court’s mandate, where it applies, is for the purpose of averting any real danger of constitutional violation. In the present case, the Petitioner is not asking the Court to design a funding model or to prescribe specific budget allocations. He is asking the Court to determine whether the existing funding model, as structured, violates fundamental rights guaranteed under the Constitution. That is a quintessentially judicial function. The distinction between policy formulation and constitutional adjudication is critical. While the Court cannot dictate to Parliament what statutes to enact or to the Executive what policies to adopt, the Court has both the jurisdiction and the duty to declare whether a policy or legislative framework, or the absence thereof, violates constitutional rights. 4. The Court of Appeal in ***Pevans East Africa Limited & Another v Chairman, Betting Control & Licensing Board & 7 others (supra)*** articulated the proper approach when it held that where the Constitution has reposed specific functions in an institution or organ of State, the courts must give those institutions sufficient leeway to discharge their mandates, and only accept an invitation to intervene when those bodies are demonstrably shown to have acted in contravention of the Constitution, the law, or when their decisions are so perverse and manifestly irrational that they cannot be allowed to stand. This standard recognizes that judicial intervention is not routine but exceptional, yet it remains available when constitutional boundaries are crossed. In arriving at the above conclusion, the Court of Appeal stated as follows; *“Courts must decline to intervene at will in the constitutional spheres of other organs, particularly when they are invited to substitute their judgment over that of the organs in which constitutional power reposes, because those organs have the expertise in their area of mandate, which the courts do not normally have.”* 1. The Petitioner’s claim is that the current funding model for basic education violates Articles 27 (equality and non-discrimination), 43(1)(f) (right to education), 53(1)(b) (right of every child to free and compulsory basic education), 55 (rights of the youth), and 56 (rights of marginalized groups). He does not ask the Court to determine the appropriate level of funding or to micro-manage the Ministry of Education’s budget. He asks the Court to determine whether the fragmented, decentralized, politically influenced structure of funding, with its multiple competing funds, lack of a coordinated database, and absence of a centralized needs-assessment mechanism, results in discrimination and violates the constitutional promise of free and compulsory basic education. These are justiciable questions. 2. The Court is aware of the caution sounded by the Supreme Court in ***In the Matter of the Speaker of the Senate & another [2013] KESC 7 (KLR)***, that the courts will not question each and every procedural infraction that may occur in either house of Parliament, and that the institutional comity between the three arms of government must not be endangered by unwarranted intrusions. However, the same Court recognized that courts have the competence to pronounce on the compliance of a legislative body with the processes prescribed for the passing of legislation. By analogy, the Court has the competence to pronounce on whether the Executive’s implementation of education funding complies with constitutional rights and principles. 3. The Court therefore finds that it has jurisdiction to hear and determine the Petition. The doctrines of separation of powers and judicial restraint do not bar this Court from adjudicating on alleged constitutional violations arising from the funding model for basic education. The Court will, however, exercise due caution and restraint, intervening only to the extent necessary to vindicate constitutional rights, and not to substitute its policy preferences for those of the democratically accountable branches of government. ***Whether the Petitioner has exhausted the available legal and constitutional remedies before approaching the Court, particularly under Article 119 of the Constitution.*** 1. The 2nd Respondent contends that the Petitioner failed to exhaust the remedy of petitioning Parliament under Article 119 of the Constitution before approaching the Court. Article 119(1) provides that every person has a right to petition Parliament to consider any matter within its authority, including to enact, amend, or repeal any legislation. Parliament has enacted the Petitions to Parliament (Procedure) Act, No. 22 of 2012, to operationalize this right. The 2nd Respondent argues that the Petitioner ought to have first petitioned Parliament to consider enacting legislation establishing a National Basic Education Fund and an integrated database, and that his failure to do so renders the Petition premature. 2. The doctrine of exhaustion of remedies is well entrenched in Kenyan jurisprudence. In ***Speaker of National Assembly v Karume (supra)*** the Court of Appeal held that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. This principle was reaffirmed in ***Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others (supra)*** stating that it is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. 3. However, the doctrine is not absolute. Courts have recognized exceptions, particularly where the claimed violations are of constitutional rights and where the alternative remedy is inadequate or ineffective. In ***William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR***, the High Court identified exceptions to the exhaustion doctrine, including where the suit primarily seeks to enforce fundamental rights and freedoms, and where the claimed constitutional violations are not mere bootstraps or framed in Bill of Rights language as a pretext to gain entry to the Court. In identifying the exceptions, the Court had the following to say; *“59. However, our case law has developed a number of exceptions to the doctrine of exhaustion. In R. vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance Kenya (NASA) (supra), after exhaustively reviewing Kenya's decisional law on the exhaustion doctrine, the High Court described the first exception thus: What emerges from our jurisprudence in these cases are at least two principles: while, exceptions to the exhaustion requirement are not clearly delineated, Courts must undertake an extensive analysis of the facts, regulatory scheme involved, the nature of the interests involved – including level of public interest involved and the polycentricity of the issue (and hence the ability of a statutory forum to balance them) to determine whether an exception applies. As the Court of Appeal acknowledged in the Shikara Limited Case (supra), the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it. This exception to the exhaustion requirement is particularly likely where a party pleads issues that verge on Constitutional interpretation especially in virgin areas or where an important constitutional value is at stake. See also Moffat Kamau and 9 Others vs Aelous (K) Ltd and 9 Others.)* *60. As observed above, the first principle is that the High Court may, in exceptional circumstances consider, and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised.* *61. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively…”* 1. The present Petition falls within the identified exceptions. The Petitioner is not merely seeking the enactment of a statute; he is alleging ongoing violations of constitutional rights arising from the current funding model. The right to free and compulsory basic education is a fundamental right guaranteed under Article 53(1)(b). The right to equality and non-discrimination under Article 27 is a core constitutional value. The right to fair administrative action under Article 47 is a justiciable right. These are not matters that can be relegated to a petition to Parliament as an exclusive or primary remedy. 2. Moreover, the remedy under Article 119 is not an adjudicative remedy; it is a political remedy. A petition to Parliament may result in parliamentary debate, committee hearings, or ultimately legislative action, but it does not provide a forum for determining whether existing laws or policies violate constitutional rights. The High Court is the custodian of the Bill of Rights under Article 23(1), and it has jurisdiction to hear and determine applications for redress of a denial, violation, or infringement of a right or fundamental freedom. To require the Petitioner to first lodge a petition to Parliament before seeking judicial redress would be to undermine the constitutional scheme that places the enforcement of fundamental rights firmly within the judicial domain. 3. The Court also notes that the Petitioner’s grievances are not merely about the absence of a statute; they include complaints about the current operation of NG-CDF, the composition of the County Education Boards, and the instances of corruption and misallocation of bursaries. These are not matters that a petition to Parliament could resolve in a manner that provides immediate redress to affected students. 4. The Court therefore finds that the Petitioner was not required to exhaust the remedy under Article 119 before filing this Petition. The doctrine of exhaustion does not bar the Court from exercising its constitutional jurisdiction to enforce fundamental rights and freedoms. ***Whether the Petitioner has met the constitutional threshold for pleading a violation of rights with the required degree of precision and specificity.*** 1. The 2nd Respondent has argued that the Petition does not meet the constitutional threshold for pleading violations of rights with the required degree of precision and specificity, as established in ***Anarita Karimi Njeru v Republic (1979) KLR 154***and reiterated by the Court of Appeal in ***Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR***. The 2nd Respondent contends that the Petitioner has not clearly identified the alleged actions of the Respondents that are claimed to be unconstitutional, nor has he specified any infringement of rights or fundamental freedoms with the required particularity. 2. The principle from ***Anarita Karimi Njeru (supra)*** is that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed. This rule serves a critical purpose: it ensures that the respondent knows the case against him, and that the Court is able to focus on the precise issues requiring determination. 3. In the Court’s assessment, the Petition meets this threshold. The Petitioner has identified with specificity the constitutional provisions he alleges have been violated: Articles 10 (national values), 27 (equality and non-discrimination), 43(1)(f) (right to education), 53(1)(b) (free and compulsory basic education for every child), 55 (youth access to education and training), 56 (affirmative action for marginalized groups), 73 (principles of leadership), 76 (financial probity), and 201 (principles of public finance). He has described the manner of the alleged violations in considerable detail, including the fragmented funding structure, the lack of a centralized fund for basic education, the composition of the NEB and CEBs, the role of the NG-CDF and county funds, the political manipulation of bursary committees, and specific instances of corruption and misallocation. 4. The Petition is supported by an Affidavit sworn by the Petitioner on 28th November 2023, which sets out in forty-five paragraphs the factual basis for the alleged violations, including specific dates, amounts, and incidents. The affidavit refers to the DCI investigation into twenty Nairobi MCAs in March 2020, the EACC investigation into Uasin Gishu County in September 2020, the Auditor General’s report identifying seventy constituencies for misuse of NG-CDF funds, and the protests in Gatundu North constituency in March 2023. These are concrete factual allegations, not vague or generalized assertions. 5. The Court of Appeal in *Mumo Matemu (supra)* did not depart from *Anarita Karimi Njeru* but rather emphasized that the principle of specificity is intended to ensure that constitutional petitions are not used as fishing expeditions. The Court in that case stated that the principle of proof of a constitutional violation necessarily requires that the petitioner should identify the specific constitutional provisions that are alleged to have been violated and the manner of the violation. The Petitioner has done precisely that. The Court therefore finds that the Petition meets the constitutional threshold for pleading. ***Whether the current funding model for basic education in Kenya violates the Petitioner’s rights or the rights of any identifiable group under Articles 27, 43(1)(f), 53(1)(b), 55, and 56 of the Constitution.*** 1. The central substantive question in this Petition is whether the current funding model for basic education violates the constitutional rights enumerated above. This requires the Court to examine the nature and content of these rights, the obligations they impose on the state, and the extent to which the existing framework meets those obligations. 2. Article 43(1)(f) provides that every person has the right to education. Article 53(1)(b) provides that every child has the right to free and compulsory basic education. These provisions must be read together with Article 20(5)(b), which requires the Court in applying the Bill of Rights to adopt the interpretation that most favours the enforcement of rights and fundamental freedoms, and to give priority to ensuring the widest possible enjoyment of the right having regard to prevailing circumstances, including the vulnerability of particular groups or individuals. 3. The right to basic education has both a negative and a positive dimension. Negatively, the state must refrain from interfering with access to education. Positively, the state must take reasonable legislative and other measures to progressively realize the right. The progressive realization clause in Article 20(5) does not render the right hollow; it recognizes that full realization may take time, but it imposes a duty on the state to move expeditiously and effectively towards that goal. As the Committee on Economic, Social and Cultural Rights stated in General Comment No. 13, progressive realization means that states parties have a specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of Article 13. 4. The State has undoubtedly taken significant steps towards realizing the right to basic education. The introduction of Free Primary Education in 2003, Free Secondary Education in 2008, and the recent capitation for Junior Secondary School are commendable achievements. The government has increased capitation grants over time, provided scholarships through the Jomo Kenyatta Foundation, and established affirmative action programs. The Court acknowledges these efforts, as detailed in Dr. Kipsang’s Replying Affidavit. 5. However, the question is not whether the state has done enough in absolute terms, but whether the current funding model is consistent with the constitutional command of equality and non-discrimination under Article 27. Article 27(1) provides that every person is equal before the law and has the right to equal protection and equal benefit of the law. Article 27(2) prohibits discrimination on any ground, including economic status. Article 27(3) provides that the state shall not discriminate directly or indirectly against any person on any ground. The concept of indirect discrimination is particularly relevant here: a facially neutral policy or practice may have a disproportionate adverse impact on certain groups, and that may constitute discrimination even if there is no intent to discriminate. 6. The Petitioner argues that the fragmented funding model indirectly discriminates against students from vulnerable and marginalized households. The Court has examined this contention against the factual matrix presented. The funding for basic education comes from multiple sources: the Ministry of Education’s capitation grants (disbursed through the National Education Board and County Education Boards), NG-CDF bursaries, and county government bursaries. There is no single national database to track which students have received funding from which source. There is no centralized needs-assessment mechanism to prioritize the most vulnerable students. The composition of the Constituency Oversight Committee for NG-CDF, where the local MP appoints all four other members unilaterally, creates a system ripe for patronage and political manipulation. 7. The evidence presented by the Petitioner, though contested by the Respondents, raises serious concerns. The Auditor General’s report cited by the Petitioner identified seventy constituencies for misusing or failing to account for millions of shillings disbursed by NG-CDF to the education sector. The Kilifi South bursary committee could not provide supporting documents for Kshs.25,000,000/= allegedly disbursed. The Ikolomani bursary committee allegedly disbursed Kshs.31,000,000/= without application forms being filled by the bursary sub-committee. These are not isolated incidents; they point to systemic weaknesses in accountability and oversight. 8. The Respondents argue that the Constitution does not mandate a single funding structure and that the decentralized approach is designed to address regional needs. That argument has force, but it does not address the core of the Petitioner’s complaint. The Petitioner does not argue that decentralization is per se unconstitutional. He argues that the current decentralized system lacks adequate safeguards against abuse, fails to coordinate among multiple funding sources, and does not include a mechanism for assessing relative need. The Constitution does not prescribe a particular funding model, but it does require that any model adopted must be consistent with the principles of equality, non-discrimination, transparency, and accountability. 9. The Court does not find that the funding model in its entirety is unconstitutional. The basic structure of capitation grants, scholarships, and bursaries is not inherently flawed. However, the Court is persuaded that there are specific deficiencies in the current framework that have the potential to violate constitutional rights, particularly the rights of vulnerable and marginalized students to equal access to free and compulsory basic education. 10. First, the absence of a coordinated database for tracking bursary and scholarship allocations creates a risk of duplication and inequitable distribution. Without a national database, the same student may receive funding from multiple sources while another student receives none, simply because there is no system to identify and prioritize need across the different funding streams. This is not merely a hypothetical risk; the Auditor General’s report cited specific instances where application forms were not filled, suggesting that distribution may be driven by factors other than need. 11. Second, the composition and appointment mechanism for the Constituency Oversight Committee under the NG-CDF Act, where the local MP unilaterally appoints all four other members, lacks sufficient checks and balances. While the Court recognizes that the NG-CDF has provided important support for education, the concentration of appointment power in a single elected official creates a real risk of patronage and political manipulation. This risk is heightened by the fact that education bursaries are a valuable resource that can be used to reward political supporters. 12. Third, the qualification threshold for members of the County Education Boards, who play a role in overseeing the implementation of education funding at the county level, is set at secondary education. While the Court does not suggest that secondary education is insufficient for all roles, the role of a CEB member includes monitoring and evaluating the implementation of education funds. The Court is concerned that a minimum qualification of secondary education may not equip members with the skills necessary to effectively oversee public financial management, including understanding budgets, financial statements, and audit reports. 13. The Court therefore finds that while the funding model for basic education is not per se unconstitutional, specific aspects of the model as currently implemented raise concerns under Articles 27, 43(1)(f), and 53(1)(b). The absence of a coordinated national database, the lack of a centralized needs-assessment mechanism, the composition of the NG-CDF Constituency Oversight Committee, and the low qualification threshold for CEB members are deficiencies that require remedial action. However, the Court is not persuaded that the solution necessarily requires the establishment of a centralized National Basic Education Fund identical to the tertiary education funding model. The distinct needs of basic education, including the importance of local responsiveness and community involvement, may justify a different structure. The appropriate remedy is not to prescribe a specific institutional design but to require the Respondents to address the identified deficiencies in a manner consistent with constitutional principles. ***Whether the funding model for basic education is discriminatory, ineffective, or otherwise inconsistent with the principles of public finance under Article 201 and the national values under Article 10 of the Constitution****.* 1. The Petitioner argues that the funding model violates Article 201 of the Constitution, which sets out principles of public finance, including openness and accountability (Article 201(a)), prudent and responsible use of public money (Article 201(c)), and responsible fiscal reporting (Article 201(d)). He also argues that the model violates Article 10, which enshrines national values and principles of governance, including the rule of law, human dignity, non-discrimination, protection of the marginalized, good governance, integrity, transparency, and accountability. 2. The Court has already found that the absence of a coordinated database and the weaknesses in oversight mechanisms raise concerns under these principles. A system that cannot reliably track who has received funding and who has not, and that lacks effective safeguards against political manipulation, cannot be said to fully meet the constitutional standard of openness, accountability, and prudent use of public money. The Auditor General’s reports, which the Petitioner cited, provide independent corroboration that these concerns are not merely theoretical. 3. However, the Court must also consider the government’s response and the steps it has taken to address these challenges. Dr. Kipsang’s Affidavit attaches the report of the Presidential Working Party on Education Reforms (PWPER), which was launched on 1st August 2023. The report contains detailed recommendations for legal reforms in the basic education sector. Significantly, the report recommends the enactment of a Basic Education Scholarships and Bursaries Bill to provide a framework for a coordinated approach in the provision of scholarships and bursaries in basic education. The report also recommends the establishment of a central database to capture all bursaries and scholarships, the identification of needy students through schools, wards, sub-counties, and counties, and the involvement of religious leaders, school heads, and elected leaders in the process. 4. The government, through Dr. Kipsang, has indicated that the Ministry of Education has finalized the preparation of draft proposals, including the Basic Education Scholarships and Bursaries Bill, 2024, and has invited stakeholders and members of the public to submit written memoranda. A notice to this effect was annexed to Dr. Kipsang’s Affidavit. This demonstrates that the government is not passive or indifferent to the concerns raised by the Petitioner; it is actively engaged in a reform process. 5. The Court must decide whether, in light of these ongoing reforms, it is necessary or appropriate to grant the declaratory and mandatory relief sought by the Petitioner. The Petitioner seeks an order of mandamus compelling the Respondents to establish a National Basic Education Fund and to develop a nationwide integrated database. The Court must consider whether mandamus is the proper remedy in these circumstances. 6. Mandamus is a prerogative order that compels a public body to perform a public duty that it is legally obliged to perform. The duty must be specific, clear, and non-discretionary. As the Court of Appeal stated in ***Kenya National Examination Council v Republic; GGN & 9 others (Ex parte) [1997] KECA 58 (KLR)***, an order of mandamus will issue to compel the performance of a public duty which is imposed on a person or body by statute, and where that person or body has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed. In arriving at the conclusion, the Court had the following to say; *“The order of mandamus is of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy the defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right or no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual...These principles mean that an order of mandamus compels the performance of a public duty which is imposed on a person or body of persons by a statute and where that person or body of persons has failed to perform the duty to the detriment of a party who has a legal right to expect the duty to be performed.”* 1. In the present case, there is no specific statutory duty imposed on the Respondents to establish a National Basic Education Fund. The Basic Education Act establishes the National Education Board and County Education Boards, but it does not create a dedicated fund. The Act provides for funds of the department of education under Section 86, but that is not a separate legal entity with its own governance structure akin to the University Fund or the TVET Fund. The Petitioner is essentially asking the Court to create a new institutional structure that Parliament has not enacted. That is not a proper function of mandamus. Mandamus compels performance of an existing legal duty; it does not create a new duty or prescribe the specific manner in which a general duty should be fulfilled. 2. However, the Court is not powerless. The declaratory reliefs sought by the Petitioner are within the Court’s jurisdiction. A declaration is a discretionary remedy that pronounces on the legal rights and obligations of the parties. It does not command action but sets the legal framework within which action must be taken. The Court can declare that the current funding model, in its specific deficiencies, violates constitutional principles, and that the Respondents have a duty to take reasonable measures to address those deficiencies. 3. The Court finds that the absence of a coordinated national database for tracking bursary and scholarship allocations, the lack of a centralized or transparent needs-assessment mechanism, and the weaknesses in oversight of NG-CDF and county bursary funds raise serious concerns under Articles 10, 201, 27, and 53 of the Constitution. While the government’s ongoing reform process through the PWPER is commendable, the Court notes that the PWPER report was launched in August 2023, and as of the date of this judgment, the proposed Basic Education Scholarships and Bursaries Bill has not been enacted. The Court cannot simply rely on the government’s assurance that reforms are underway without ensuring that there is a clear timeline and commitment to address the identified constitutional deficiencies. 4. The Court therefore declares that the Respondents have a constitutional duty to take reasonable measures to ensure that the funding model for basic education is transparent, accountable, non-discriminatory, and effectively targets the most vulnerable and marginalized students. The specific measures required include, but are not limited to, the establishment of a coordinated national database for tracking bursary and scholarship allocations, the formulation of transparent criteria for needs-assessment and allocation, and the strengthening of oversight mechanisms for NG-CDF and county bursary funds to minimize political manipulation and corruption. ***Whether the Petitioner is entitled to the reliefs sought*** 1. The Petitioner seeks several declaratory reliefs and orders of mandamus. In light of the Court’s findings, the reliefs will be granted in part. 2. The Court grants declaratory reliefs as follows. First, a declaration that the absence of a coordinated national database for bursary and scholarship allocations, the lack of transparent and standardized criteria for needs-assessment, and the inadequacy of oversight mechanisms for NG-CDF and county bursary funds, to the extent that they result in indirect discrimination against vulnerable and marginalized students, violate Articles 10, 27, 43(1)(f), 53(1)(b), and 201 of the Constitution. 3. Second, a declaration that the Respondents have a constitutional duty to take reasonable legislative and other measures to address these deficiencies, including the establishment of a coordinated national database, the formulation of transparent criteria for allocation of bursaries and scholarships, and the strengthening of oversight mechanisms. This declaration is the logical extension of the first, and it fits well within the constitutional and existing statutory duties of the Respondents and their associated entities; as well as sitting in part within some of their ongoing reform proposals and actions. 4. The Court declines to grant an order of mandamus compelling the establishment of a National Basic Education Fund. As explained above, there is no specific statutory duty to establish such a fund, and the Court cannot create a new institutional structure by judicial fiat. However, the Court notes that the PWPER report contains recommendations that could be implemented through legislation, and the Court’s declaration sets the constitutional framework within which Parliament and the Executive could act. 5. The Court also declines to grant an order of mandamus compelling the development of an integrated database in a specific form, but the declaration that such a database is necessary to ensure transparency and non-discrimination should guide the Respondents in their ongoing reform efforts. **CONCLUSION** 1. The Petition partially succeeds. The Court finds that while the current funding model for basic education is not wholly unconstitutional, specific deficiencies in its implementation violate constitutional principles of equality, non-discrimination, transparency, and accountability. The Government has demonstrated commendable efforts through the PWPER process, but the Court cannot assume that those efforts will automatically cure the identified deficiencies. 2. However, this Court shall not direct the National Executive and/or the National Legislature to undertake specific corrective actions and to thereafter impose timelines within which they should take those corrective actions. The declarations that this Court shall proceed to issue below based on the analysis and findings above should be sufficient for the requisite authorities to take corrective action if they so wish; noting that the subject matter is one which involves the rights and best interests of children and young-adult learners who wish to live the Kenyan dream of education as the driver to a better future. 3. This position is further fortified by the finding above that the Government has demonstrated commendable efforts through the PWPER process and that the PWPER report contains recommendations that could be implemented through legislation. 4. From the foregoing, the Court makes the following final orders: 5. A declaration be and is hereby issued that the absence of a coordinated national database for tracking bursary and scholarship allocations, the lack of transparent and standardized criteria for needs-assessment, and the inadequacy of oversight mechanisms for the National Government Constituencies Development Fund and county bursary funds, to the extent that they result in indirect discrimination against vulnerable and marginalized students, violate Articles 10, 27, 43(1)(f), 53(1)(b), and 201 of the Constitution of Kenya, 2010. 6. A declaration be and is hereby issued that the Respondents have a constitutional duty to take reasonable legislative and other measures to address the deficiencies identified in this judgment, including measures to establish a coordinated national database for bursary and scholarship allocations, to formulate transparent criteria for the allocation of bursaries and scholarships based on relative need, and to strengthen oversight mechanisms to minimize political manipulation and alleged corruption. 7. In view of the public interest nature of the Petition and the fact that it has only partially succeeded, each party shall bear their own costs. Orders accordingly. File Closed Accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 13TH DAY OF MAY 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **BAHATI MWAMUYE MBS** **JUDGE** In the presence of: - Counsel for the Petitioner – Mr. Shikanda h/b Mr. Osundwa Counsel for the 1st & 3rd Respondents - Absent Counsel for the 2nd Respondent - Mr. Cheboryot Court Assistant – Mr. Martin