A lobby group has moved to court to stop the implementation of the Sh501 million school feeding programme in Nairobi County.
The group — Tunza Mtoto Coalition Kenya — wants the county government and Governor Johnson Sakaja restrained from implementing the project, which aims to feed children enrolled in public primary schools in Nairobi County.
In an application before Milimani High Court, the education lobby group wants the court to issue a conservatory order staying, halting and/or suspending the release and utilisation of the funds allocated to the programme pending the hearing and determination of the application.
According to the application filed by Nasimiyu and Company Advocates, the coalition and its executive director, former Nairobi Education CEC Janet Muthoni Ouko, are listed as petitioners under a Certificate of Urgency.
Mr Sakaja is the first respondent, while the City Hall, the county assembly, the clerk and the Speaker are the other respondents in the suit, in that order. The petitioners allege that on or about June 20, 2023, the City Hall arbitrarily and unlawfully announced that it would take over the functions of the national government in respect of primary schools through the introduction of a school feeding programme called "Dishi Na County" aimed at feeding children enrolled in public primary schools within Nairobi County.
However, no gazette notification was ever published authorising the transfer and delegation of the powers, functions and responsibilities of the national government in respect of primary schools to the county government.
Furthermore, the petitioners said, there was no deed of transfer signed between the national government and the county government authorising the transfer of the said functions, and therefore the governor and the county government's implementation was illegal, unconstitutional and a gross violation of Article 185(2) on the legislative powers of county assemblies.
The Article states that a county assembly may make any law necessary or incidental for the effective performance of the functions and exercise of the powers of the county government under the Fourth Schedule.
According to the suit, the county government allocated Sh1.22 million for the said programme and a further Sh500 million for the construction of kitchens in support of the programme in its budget read to the county assembly on June 29, 2023.
“The actions of the respondents are illegal and unconstitutional because the function of formulating and implementing policies and programs with respect to primary schools is performed by the National Government and as such the actions were taken and continue to be taken in the absence of jurisdiction and thus ultra vires,” reads in part the application.
As a result, the petitioners sought an injunction restraining the respondents from implementing the programme pending the hearing and determination of the application.
They also want the respondents, whether by their agents, servants or anyone acting under them, to be restrained from approving, allowing debate on, responding to, tabling a report on, passing into law and/or gazetting the Finance Bill 2023 until the inter partes hearing of the application.
To underscore the need for the application to be treated as urgent, the petitioners said the Cabinet Secretary for Education, Mr Ezekiel Machogu, had on July 12, 2023, met with headteachers drawn from all primary schools for a briefing on the programme, a move which showed that the respondents were preparing to start the project
Furthermore, the petitioners pointed out that the construction of the kitchens has already started.
"It is therefore just that this application be heard on a priority basis and that the orders sought be granted to avoid a miscarriage of justice.
"Ms Ouko noted that according to the Fourth Schedule of the Constitution, primary education is not a county education but Early Childhood Development Education (ECDE) is. Consequently, she said, the huge investment would have been better used to build more schools to bring more children back to public schools, saying the money can build eight schools a year at a cost of Sh100 million each.
She argued that there is space for only 28,000 in public ECDE centres in the capital with 250,000 children of ECDE age, forcing the rest to attend non-formal centres or private schools where their parents struggle with fees despite paying taxes to the county.
Ms Ouko noted that the lack of a school feeding initiative in the capital is not the main reason Nairobi's children are out of school, the fees are.
