Cabinet Secretary National Treasury & Economic Planning & 3 others v Benjamin & 10 others (Civil Appeal (Application) E323 of 2025) [2025] KECA 1959 (KLR)
The bottom line
#Kenya's Court of Appeal refused to suspend the ruling striking down the e-Citizen school fees payment directive and the Kshs. 50 convenience fee, so the High Court judgment stands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal against the High Court judgment is arguable
- 2.Whether, if the stay is not granted, the intended appeal would be rendered nugatory
- 3.Whether the public interest favours a stay of the High Court judgment
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable: it raises several bona fide issues including the competence of proceedings supported by an affidavit commissioned by an unqualified advocate, the adequacy of public participation, and reliance on issues introduced by an interested party outside the pleadings.
The Court applied the settled principle that an arguable appeal need not succeed but must raise bona fide issues. It identified three such issues from the applicants' grounds: the validity of the petition affidavit commissioned by an advocate without a practising certificate; evidence of public participation prior to implementing the e-Citizen platform and its fees; and the trial judge's reliance on matters raised by an interested party beyond the original pleadings. On this limb the applicants succeeded.
Nugatory aspect
The intended appeal would not be rendered nugatory if the stay is denied; the alleged harm is speculative and reversible.
The Court found the convenience fee to be purely monetary, so any financial implications of its suspension are capable of remedy if the appeal succeeds. The government, as a continuing entity, can reallocate funds through supplementary budgets, and there was no concrete evidence of imminent termination of service contracts. Conversely, if a stay were granted and the appeal failed, funds collected under the impugned fee may be irrecoverable, creating greater prejudice to the public.
Public interest and disposition
Public interest favours upholding the High Court judgment rather than staying it; the application fails because only one limb of the rule 5(2)(b) test was met.
The Court held 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 constitutional compliance, transparency, and access to government services without unauthorised charges, pending the intended appeal. Because only the arguability limb was satisfied, the application had to be dismissed, with no order as to costs given the public interest, and the appeal directed to be heard on a priority basis.
Legal principles established
#- On a rule 5(2)(b) application, the applicant must satisfy the twin tests that the intended appeal is arguable and that it would be rendered nugatory unless stayed; satisfying only one limb is fatal to the application.
- An arguable appeal need not necessarily succeed; it suffices that it raises bona fide issues worthy of the Court's consideration, and even a single arguable point suffices.
- Where the judgment impugned concerns a purely monetary charge, suspension of that charge is generally capable of remedy, so the nugatory limb will rarely be satisfied.
- Public interest favours upholding a declaration that a fee is unconstitutional; continuing to collect a fee already declared unconstitutional undermines the rule of law.
Court orders
#- 1.The Notice of Motion dated 4th April 2025 seeking stay of execution of the High Court judgment is dismissed
- 2.No order as to costs, the application involving significant public interest
- 3.The intended appeal (if already filed) be heard on a priority basis, and certainly before the current term of the Court comes to an end
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi High Court Constitutional Petition No. E059 of 2024
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 44 and 45 of the Court of Appeal Rules (inherent jurisdiction and stay pending intended appeal)
Relief refused
#Stay of execution of the High Court judgment and decree of 1st April 2025 declaring the e-Citizen school fees directive unconstitutional and the Kshs. 50 convenience fee illegal
Only the arguability limb was satisfied; the applicants failed to demonstrate that the appeal would be rendered nugatory, as the fee is monetary and reversible, the alleged contractual termination was speculative, and public interest favours constitutional compliance
Costs of the application
The application involves significant public interest
Costs
No order as to costs - 'As this application involves significant public interest, we make no order as to costs.' Each party to bear its own costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Since the applicant has only satisfied one limb of the twin principles under rule 5(2)(b) of this Court’s Rules, this application must fail. We hereby dismiss the application. As this application involves significant public interest, we make no order as to costs.
It is trite law that in applications of this nature, the applicant must demonstrate, first, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the appeal will be rendered nugatory.
an arguable appeal is not one that must necessarily succeed, but one that raises bona fide issues worthy of the Court’s consideration
the convenience fee declared unconstitutional is purely monetary and as such, any financial implications arising from its suspension are capable of being remedied should the appeal succeed.
we direct that the appeal (if already filed) be heard on a priority basis and certainly before this term comes to an end.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cabinet Secretary National Treasury & Economic Planning & 3 others v Benjamin & 10 others (Civil Appeal (Application) E323 of 2025) [2025] KECA 1959 (KLR)", Case Analysis (2025). Notice of Motion dated 4th April 2025 (arising from intended appeal against Nairobi High Court Constitutional Petition No. E059 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1959/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.