AG: Why Govt cannot stop charging Kenyans fees to access services

Attorney general Dorcas Oduor officiate Sheria Open Day,on 31st August 2024 at Sheria House in Nairobi.The event will offer the public a unique opportunity to engage directly with staff from various departments within the State Law Office.[FILE/Standard]

Attorney General Dorcas Oduor on Wednesday told the High Court that the government failed to stop charging Kenyans convenience fees for services offered through E-citizen because of the “complexity of the system.”

While explaining why High Court Judge Chacha Mwita should not jail Treasury Cabinet Secretary John Mbadi, his Interior, ICT and Education counterparts Kipchumba Murkomen, William Kabogo and Migos Ogamba, and the Kenya Revenue Authority boss Humphrey Mulongo, the AG claimed that the E-citizen system was complex and required time to reconfigure.

At the same time, the lawyer representing the AG’s office, Henry Kaumba, alleged that compliance with the orders meant that the system would be compromised.

“The implementation of the order, as is, required due notices and proactive action on the part of the government to issue appropriate notices and reallocation of funding, a process which takes time. Further, immediate implementation of the orders posed to compromise the functionality of the E-citizen payment platform, which remains constitutional, due to lack of financing towards administrative and technical support of the system, which is required on an ongoing basis,” claimed Kaumba.

He continued: “A compromised E-citizen payment platform would be extremely prejudicial to the government and the public, considering that there are about 16,000 government services that have been onboarded into the platform with an estimated daily traffic flow of users standing at an average of 120,000 users.”

Kaumba, however, said that some of the orders had been complied with, such as the withdrawal of the circular that required all parents to pay school fees through the system.

In this case, Nakuru-based surgeon Gikenyi Magare wants the senior government officials punished for defiance.

He argued that since Justice Mwita issued his orders stopping the payment of convenience fees on April 1, 2025, the government has continued with the same as if no orders existed.

“The culture of disobeying court orders with impunity has reached very high levels in Kenya and the courts must now exercise their constitutional authority of punishing offenders for contempt of court,” argued Magare.

He further stated that last week, the Court of Appeal dismissed the AG’s plea to suspend his verdict on the fees.

Court of Appeal judges Daniel Musinga, Francis Tuiyott and Pauline Nyamweya unanimously ruled that it would be unfair for Kenyans to continue paying the amount ranging between Sh5 and Sh50 as the fee had been declared unconstitutional.

On the other hand, the bench headed by Justice Musinga said that the scales of justice tilted to favour of Kenyans as they will access government services without unauthorised charges. They further noted that it would be impossible to recover the money.

“In this regard, we are mindful that continuing to collect a fee already declared unconstitutional would undermine the rule of law and burden citizens unlawfully. The greater public good lies in ensuring constitutional compliance, transparency and access to government services without unauthorised charges, of course, pending the outcome of the intended appeal,” the bench ruled.

Central to the case was the question of who is the beneficiary of the fees collected each day and whether the fees were not anchored on any law but a gazette notice.

The application was filed by the Treasury Cabinet Secretary, his Communication and Digital Economy counterpart, and the Attorney General. They claimed that the firms behind E-citizen would withdraw their services if the fees collection was stopped.

Former Treasury Cabinet Secretary Njuguna Ndung’u in 2023 gazetted new charges for accessing government services online. Kenyans now pay between Sh5 and Sh50 for any transaction on E-citizen as gazetted by Treasury Cabinet Secretary Njuguna Ndung’u.

Any government service worth Sh199 and below costs Sh5 service fee. According to the notice, a service between Sh200 and Sh299 costs Sh10, while the next band of Sh300 to Sh499 is charged Sh20.

Transactions worth Sh500 to Sh699 are charged Sh25, while anything worth Sh1,000 will cost Sh50.

President William Ruto had directed that all government services should be paid through E-citizen. However, the President’s pet project has so far been subjected to three court cases and a declaration that the convenience fee is unconstitutional.