High Court rejects bid to cap private school fees

The High Court has rejected a petition by parents of Crawford International School to compel the government to prepare and submit to the National Assembly a Bill to cap private school fees.

The parents pushed for Education Cabinet Secretary George Magoha and Attorney-General Kihara Kariuki to develop the regulations that would also affect institutions offering international curriculum in Kenya.

But Justice Weldon Korir said private schools do not receive taxpayer money and are free to charge fees based on markets forces of demand and supply

“The onus of determining whether fees for private schools should be capped is an issue for the Executive and Parliament. Those who want levies payable in private schools to be capped should lobby Parliament to pass the necessary law,” said Justice Korir.

The court observed that the implications of such a law are significant and requires more than a judges’ decision.

The push emerged in a period when parents, mostly from high-end schools, have sued schools to cut fees charged for online classes in the wake of coronavirus outbreak that has led to closure of institutions.

Parents hit by job and pay cuts as well as unpaid leave following the pandemic have been struggling to settle the fees.

“Although I do not agree with the suggestion by the CS and the Attorney-General that this court has no authority to direct the Executive on policy formulation, I find that in this particular case the petitioners have not convinced this court that it should issue an order directing the CS and the AG to formulate such a Bill,” said the judge.

He noted that although free and basic education is indeed an important constitutional right, the responsibility of discharging that mandate rests on the State and not private entities.

In 2011, Kenya enacted a law that allowed the country to return to price controls of any essential commodity, after the practice was abandoned in the 1990s in favour of economic liberalisation.

Under the law, Treasury secretary through the Kenya Gazette can declare any goods to be essential commodities and determine the maximum prices of the goods in consultation with industry players.