Former Nairobi County Education CEC Janet Muthoni has challenged Governor Johnson Sakaja’s feeding program for public primary school pupils schooling in the capital city.
Muthoni in her case filed before High Court judge Mugure Thande argues that the program dubbed ‘Dishi na County’ is illegal as education is a National Government function.
She has sued alongside a children's rights lobby Tunza Mtoto Coalition Kenya.
Her lawyer Maureen Nasimiyu argues that the governor and President William Ruto did not sign any document to transfer the National Government’s roles to the County.
At the same time, Nasimiyu states that there is no legal notice authorizing the county to feed children who are schooling in public schools.
According to Nasimiyu, at least Sh1.7 billion has been set aside for the program by the county.
The lawyer argues that the money will be illegally spent on a function that is not anchored on a devolved unit of government.
In her case, Muthoni claims that Education Cabinet Secretary Ezekiel Machogu met all Primary schools head teachers for a briefing on the program. She says this is an indicator that more kitchens will be built while other works have already begun.
“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,” she argues.
Nairobi County has already launched the school feeding program dubbed called Dishi Na County. Under the arrangement, the government has established mega kitchens in 10 sub-counties.
Dagoretti North, Embakasi Central, Embakasi South, Kasarani, Kibra, Makadara, Starehe, Roysambu, Ruaraka and Westlands were the pioneer sub-counties.
It is estimated that once the program takes off, about 250,000 children in public primary schools and public Early Childhood Development centres will be fed.
However, Muthoni argues that there was no public participation nor were stakeholders involved in the process by the county.
According to her, owing to the amount of taxpayers' money being spent, there should have been approval from Parliament, County Assembly, and Public Participation.
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“The petitioners had legitimate expectation that the transfer of the said function to the County government will be subject to approval by the County Assembly, Parliament and Public Participation. The petitioners contend that the respondents fell short of the constitutional expectations as the process was not transparent or accountable by involving public participation contrary to Articles 10 and 118,” Muthoni states in her supporting affidavit.
Muthoni has sued Sakaja, Nairobi County, the Nairobi County Assembly, the County clerk, the speaker of the county, the controller of budget, and the Ministry of Education.
She has also cited the Law Society of Kenya (LSK), Peter Imwatok (county majority leader), and Kiragu Karanja (minority leader) as interested parties.
The education rights activist now wants the court to suspend the program, stating that it will not benefit pupils from poor backgrounds.
“A majority of the parents of children who attend non-formal schools are low-income earners and therefore poor and, a good proportion of children attending non-formal schools do not have access to facilities in public schools or benefit of school feeding program yet their parents will bear the tax burden of ensuring that meals are provided for public school, which they cannot afford to enrol their children in,” she argues.